5. I refer to the Affidavit of, White, Parag.7 (See: Transcript 29 June, 2004 pg. 25.8-27.1).

6. The Applicant provided two (2) statements dated 3rd & 17th October, 2000 (See: White parag. 7 Annexure A).

Both statements were supplied to the Coroner and formed part of the brief of evidence tendered to the Coronial Hearing. The Applicant was emotionally upset of the death of his brother, Rodney Trindall (See: Transcript 29 June, 2004 pg. 27.2).

7. As a result of that death, the Applicant was moved by the 7th October to provide a detailed report to the Coroner dated 7th October, 2000 (about 5 days after the death of his brother).

8. The Applicant involved himself in telephone calls, letters and faxes to the Glebe Coroner's Court in respect to that death (See: Transcript 29 June, 2004 pg. 27.6; White parag. 9 Annexure C; Transcript 29 June, 2004 pg. 28.4-41.1).

9. In a letter addressed to the Glebe Coroner's Court dated 7th October, 2000 the Applicant exhibits a detailed knowledge of the blood disorder called sickle cell trait. In the said letter to the Coroner, he recalls his own experience in 1995, and reflects a self-diagnosis where he states: "Even though the treating doctor diagnosed dehydration, I know myself, later, that I had a sickle cell shut down" (See: White Annex. C pg.2).

10. He further states in the said letter: "I am no doctor and hope that I don't come across as being cocky, but to me, Rodney displayed classic signs of having a sickle cell attack or shutdown. Upon seeing Rodney in hospital the next day, I even mentioned for him to come home and rest due to my experience and previous incident. Further, I am concerned that this issue of sickle cell will not be investigated fully" (See: White Annex.C pg. 2).

11. His letter reflects his knowledge of the condition, his stress, frustration and his distress in respect to the death of his brother.

12. He is plainly concerned as to how that condition played a part in the death of his brother. In respect to his brother's death, he was frustrated (See: Transcript 29 June, 2004, pg. 37.8) and as a result of that, he was having a number of discussion(s) with the Glebe Coroner's Court and he spoke to Dr Helen Hugo and to other people (See: Transcript 29th June, 2004 pg. 37.8-40).

13. The Applicant also went down to Sydney to discuss the situation with a counselor at the Coroner's Court (See: Transcript 29th June, 2004 pg. 38.3) and further he had a discussion in respect to Coroner Abernathy in respect to Rodney's sickle cell trait (See: Transcript 29th June, 2004 pg. 38.7).

14. Whether it be correct or not, the Applicant held the belief that in 1995 he also suffered a sickle cell shutdown (See: White Annexure C pg. 1.9-2.2; Transcript 29th June, 2004 pg. 32.5-34.3).

15. It is submitted, beside other matter(s) that were occurring in the Applicant's life, he was completely distraught as a result of his brother's death and showed a fear, concern that sickle cell trait played a large part in his death. Further, it is submitted by October, 2000 the Applicant was also extremely concerned in respect to his own personal situation regarding sickle cell trait, in respect to his employment.

16. The Autopsy report on the death of Rodney James Trindall was tendered (See: Transcript 29th June, 2004 Exhibit R1-Autopsy Report dated 27th November, 2000 pg. 3.3). The Autopsy report was prepared by Dr Ellen Sugo, Pathology Registrar. It was found the direct cause leading to the death was complications of a sickle cell trait. The report summary states: "This 33 year old male, Rodney Trindall, has died from complications of sickle cell trait". Under the heading Comment it states inter alia: "the macroscopic and histological findings are in keeping with the clinical history of multi-organ failure". That autopsy report has been prepared by Dr Sugo, the Pathology Registrar and Dr A Rodiguez, Neuropathologist.

17. It is submitted that the Applicant would be emotionally concerned in respect to the deliberation over the death of his brother. However, because of their congenital blood disorder, the Applicant sought to provide assistance and information to the Coroners Court, in its deliberation. The Coroner's report has not been attacked in respect to its findings. The medical specialists are clearly of the opinion that his death occurred from complications of sickle cell trait. The Applicant was aware of the circumstances surrounding his brother's death (See: White parga. 7 Annex. A & B). The Coroner's report was not tendered by the Applicant, and it is submitted it exposed facts unfavourable to the Applicant's position (See: Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298, 320-321).

18. The Applicant was aware that his brother had been involved in a violent situation, where according to the Autopsy Report brought on complications of sickle cell trait. The Applicant in his capacity as a serving Police Officer was well aware that in the carrying out of his daily duties he was exposed to continual violent situations in the carrying out of his normal duties.

19. It is reasonable to conclude by 9 October, 2000 that Constable Trindall, in his chosen occupation, considered that his work environment he placed himself in a situation where he too could suffer a sickle cell complication causing death.

20. In late or early, 2001 Inspector Cairncross had a conversation with Mr Gary Trindall, uncle of Rodney Trindall, being informed: "I have concerns regarding the impact of the coronial investigation in relation to Rodney upon Bradley. Constable Trindall has a medical condition called sickle cell and there is a possible link between the death of Rodney and sickle cell" (See: Cairncross parag. 6 & 7).

21. In cross examination Inspector Cairncross advised that Gary Trindall, Constable Trindall's uncle had advised him in or around October, 2000 of his condition (See: Transcript 10th August, 2004 pg. 88.5). It would appear that Gary Trindall raised it with Inspector Cairncross on at least three occasions his concerns between the period October, 2000 and January, 2001 (See: Transcript 10th August, 2004 pg. 88-89).

22. Inspector Cairncross indicated that on the second occasion when it was raised by the Applicant's uncle, Gary Trindall, he showed greater concern in respect to the condition and also discussed the disclosure of the condition. Inspector Cairncross was of the opinion that the second conversation may have taken place on the 4th January, 2001.

23. Inspector Cairncross was of the opinion that he had to report the condition as it could affect his health and wellbeing being a member of the New South Police force. Inspector Cairncross advises that he was asked to keep this information confidential by [the applicant's] uncle Gary Trindall.

24. However, he indicated that he was obligated to report it and did inform Superintendent Gillett. It appears that the Applicant's uncle, Gary Trindall, asked of Inspector Cairncross not to disclose who had supplied the information as he was a family member. Inspector Cairncross indicated, that he would attempt to respect that confidentiality up until the matter came before the Court (See: Transcript 10 August, 2004 pg. 88-89).

25. Further, Inspector Cairncross requested that the Applicant's uncle, Gary Trindall, raise with the Applicant that he should raise the matter with his Commander. In his opinion, because of the level of concern exhibited by Gary Trindall, it should be formally reported (See: Transcript 10th August, 2004 P90.2).

26. The Applicant's uncle, Gary Trindall, is presently still a serving member of the New South Wales Police Service. He has not been called by the Applicant to give evidence, nor was Inspector Cairncross challenged on the concerns raised by the Applicant's uncle, Mr Gary Trindall. It is submitted that the Applicant's uncle, a serving aboriginal officer with the New South Wales Police, was extremely concerned for the Applicant's welfare in respect to his condition as to how it may be affected in his daily working life.

27. As Mr Gary Trindall has not been called, it is submitted that an inference can be drawn that he would not be supportive of the Applicant in his allegations of discrimination against his employer (See: Jones v. Dunkel).

28. Mr Gillett gave evidence on the 11th August, 2004 and is the retired commander of the Barwon Local Area Command (See: Gillett parag. 1-4).

29. Superintendent Gillett, in cross examination, advised the Court that he could not recall Inspector Cairncross informing him of the Applicant's medical condition prior to Christmas 2000. However at a point in time Inspector Cairncross did mention, that the Applicant had a medical condition, but he did not articulate what that condition was (See: Transcript 11th August, 2004 pg. 51.8).

30. It was Superintendent Gillett's recollection that he received an email from Inspector Cairncross about the issue (See: Transcript 11th August, 2004 pg. 52.2).

Superintendent Gillett's recollection was that he did not have an initial conversation with Inspector Cairncross, but received an email indicating that the Applicant may have a medical condition. He indicated that Brad was to return to work on or about 10 or 11 January, 2001, but he had a medical condition that he had been told about in confidence and that Brad, "was to be placed on restricted duties, an email to that effect" (See: Transcript 11th August, 2004 pg. 52.2).

31. It appears that email was sent on the 4th January, 2001 (See: Transcript 11th August, 2004 pg. 52.8-52.9) and admitted into evidence as A5 emailed to Mr Gillett from Inspector Cairncross dated 4th January, 2001 (See: Transcript 11th August, 2004 pg. 59.4).

32. Superintendent Gillett was of the opinion that he did not make enquiry about the nature of the medical condition because of the mention of confidentiality, he felt that he didn't have a right to question that, until Brad (Applicant) made the disclosure (See: Transcript 11th August, 2004 pg. 60.2).

33. The Applicant had been off work since October, 2001 after the Olympics issue. On the 5th January, 2001 he attended the Narrabri Police Station and had a conversation with Inspector Ridley in respect to his return to work. On that occasion he informed Inspector Ridley about his brother's death. Further, that his brother Rodney (deceased) his father and cousins had a genetic blood disorder called sickle cell trait. Inspector Ridley had never heard of this condition and Constable Trindall explained what the condition was. The Applicant explained what had happened to his brother and as a result it triggered a sickle cell attack. He advised of his contact with the coroner and advised Inspector Ridley that he had done a lot of research into sickle cell trait and had passed same onto the coroner. He discussed his collapse at the Sydney Police Centre (Goulburn) where he was taken to hospital and attempted to tell the hospital that he had a sickle cell attack, but they had not heard of it.

34. The Applicant's concern at that time was that he could end up like his brother and he was very concerned if he had got involved in an arrest or long drawn out struggle he could also have a sickle cell attack. At the time he indicated that he was very depressed. Inspector Ridley had the discussion with him, that there was no need for him to stay on the front line, and, that there were successful career avenues in other sections of the Police force, thus removing the risk of physical contact. The Applicant indicated that he would think about that. He was advised by Inspector Ridley that he should inform Commander Graham (Western Region) about his medical condition. It was left on the basis that he would tell Commander Graham about his medical condition on the 19th January, 2001 which was the date of the mediation in respect to his non-attendance at the Sydney Olympics (See: Ridley parag. 17-19).

35. A summary of that conversation set out in Inspector Ridley's diary entry dated 5th January, 2001 and was transcribed (See: Transcript 11th August, 2004 71.5).

36. In cross examination Inspector Ridley indicated that on the 5th January, he arranged a meeting with the Applicant and informed the Applicant that when he returned to work he was to perform station duties up until the 19th January, 2001 where Commander Graham would speak to him in relation to the conciliation (See: Transcript 11th August, 2004 pg. 75.2 Ridley Annex. A).

37. Inspector Ridley was of the opinion that in the background there was an investigation taking place which involved the Applicant and there was a conciliation process between Commander Graham and the applicant to take place on the 19th January. Inspector Ridley gave evidence that he was not aware of the circumstances surrounding the investigation that was being conducted at that time (See: Transcript 11th August, 2004 pg. 76.5-77.2).

38. Inspector Ridley advised that he had no direct knowledge of what was taking place in respect to his return to work at the end of 2001 early 2002 (See: Transcript 11th August, 2004 pg. 75.5).

39. Inspector Ridley's evidence regarding the meeting on the 15th January was strongly contested by Counsel (See: Transcript 11th August, 2004 pg. 80-83.5). Inspector Ridley was confident that he had a good recollection of the conversation that took place on the 5th January, 2000 (See: Transcript 11th August, 2004 pg.83.4).

40. It should be noted that Inspector Ridley said: "Some of the conversation I had with Constable Trindall was information that I had no knowledge of in relation to sickle cell trait it was quite unique and it is that type of conversation, whilst only summarized in my diary, you don't forget it" (See: Transcript 11th August, 2004 pg. 83.8).

41. Inspector Ridley drove the Applicant to Moree in relation to informing Superintendent Gillett of his condition.

42. Inspector Ridley advised the Applicant that he should inform the Superintendent of his medical condition and explain to him what sickle cell is all about (See: Ridley parag. 20-23).

43. Inspector Ridley was of the view that the day he informed Superintendent Gillett of his medical condition it was a different day to the day of the mediation as he did not attend the medication (See: Transcript 11th August, 2004 pg. 85.8).

44. In cross examination in respect to the trip and meeting at Moree, Inspector Ridley didn't record any details. However, he was of the view, what the Applicant told Superintendent Gillett was virtually the same as what he had indicated to him on the meeting of the 5th January, 2001 (See: Transcript 11th August, 2004 pg. 86.8). In his opinion, that was the gist of the conversation that took place with Superintendent Gillett (See: Transcript 11th August, 2004 pg. 87).

45. In the trip across to Moree, Inspector Ridley reiterated the Applicant's concern and he was also concerned in respect to his welfare as a duty officer (See: Transcript 11th August, 2004 pg. 88.7).

46. Inspector Ridley's credit was attempted to be tainted in further cross examination by Mr Gibson. In a past Police Royal Commission he admitted to falsifying entries in his notebook. I raised objection to that subsequently on the 8th August, 2004 (See: pg. 138.4-139) in respect to that belated attack on Inspector Ridley.

47. I would submit that attack was of no probative value, in that his evidence, as given in this trial was not attacked on the basis that he had not told [the Court] the truth.

48. [The Court] had the ability to observe Inspector Ridley in the witness box, and I submit that he answered all questions in a straight forward and truthful manner. In that respect, the matters that he raised are matters that would not within his knowledge, if not advised by the Applicant.

49. I would submit as the medical condition, the facts surroundings his brother's death and his earlier collapse in his recruitment program are all within the knowledge of the Applicant. I would submit that Inspector Ridley has truthfully informed the Court of the conversations that took place between himself and the Applicant in relation to his medical condition and his concerns in relation to his duties as a police officer. There was no attempt to correlate the situation in the Police Royal Commission and the matter before this Court.

50. In respect to that, it should be noted that when that conversation took place, Inspector Ridley held a lower rank and now holds the rank of Inspector. As the matter was apparently before the Police Royal Commission, Inspector Ridley must have the confidence of the Commission as he now holds the rank of Inspector. Therefore what took place before the Police Royal Commission, I would submit, must be seen in the context of not being considered of serious nature. It was certainly never suggested to Inspector Ridley that he was part of some conspiracy to attack the credit of the Applicant, nor was it suggested that Inspector Ridley was part of such a conspiracy with any of the other witnesses who have given evidence on behalf of the Respondent. At the end of the day, I would submit that [the Court] would accept Inspector Ridley as a person of truth in respect to the evidence that he has given before this Court. It should also be noted that the Applicant in his Submission does not attack the credit of Inspector Ridley.

51. Superintendent Gillett (retired) had a conference with the Applicant in the later part of January, 2001 in respect to his medical condition. At the time of his Affidavit he could not recall the exact date. Superintendent Gillett advised that his knowledge of the disease was based on the information that was supplied by Constable Trindall. At the meeting, Superintendent Gillett advised that acting duty officer, Sergeant John Ridley was also at the meeting and he advised that the Applicant informed him that he had done a lot of research into the condition of sickle cell trait. He expressed his concern for his own safety with respect to his duties, bearing in mind a violent confrontation could trigger the condition with similar consequences to his brother (See: Gillett parag. 22, 23, 24).

52. In his evidence, Superintendent Gillett was of the view that the mediation session (Olympic issue) was on the 19th January, 2001 and that this meeting in respect to his medical condition occurred on the following week, either on the 21st or 22nd January, 2001. However, he was not certain of the dates (See: Transcript 11th August, 2004 pg. 55.8-56.1).

53. Counsel for the Applicant suggested that it was Superintendent Gillett who raised the issue of sickle cell first at the meeting. I submit, little turns on this point, however, to suggest, such a proposition at this stage would be a little "odd" considering all of the evidence that the Court has before it, involving the Applicant's concern over the condition. Superintendent Gillett was quite strong on the point that he did not have prior knowledge of this condition. He accepts that he had been informed that the Applicant had a medical condition issue which had been advised to him by Mr Cairncross in confidence however he had not inquired further as to its nature. Further, it was indicated to Superintendent Gillett from Inspector Cairncross he had been told in confidence, and he was waiting for Brad to inform him of this issue (See: Transcript 11th August, 2004 pg. 56.8-57.2).

54. Superintendent Gillett advises that there was a conversation about his condition and he requested a report be put in to him so that the report could be forwarded to the PMO in respect to his concerns (See: Transcript 11th August, 2004 pg. 57).

55. At that time the Applicant was on restricted duties in relation to the station duties as a result of the email that he had received from Inspector Cairncross. (See: Exhibit A4 email to Mr Gillett from Inspector Cairncross; Transcript 11th August, 2004 pg. 58.3-59.4).

56. There appears to be a little confusion as to what occurred after 24th Janaury, 2001.

57. In that regard, Inspector Gillett referred to paragraph 24 of his affidavit where he indicated that the restrictions that were in place prior to the 24th January, 2001 were related to the same matter. In that regard he referred to the medical condition that he had been informed of by Mr Cairncross in confidence in the email that he had received on or about 4th January, 2001 (See: Transcript 11th August, 2004 pg. 58.5-59.5).

58. Superintendent Gillett advised the restrictions that were placed on the Applicant after the 24th January, 2001 where he was to perform station duties that did not expose him to violent or confrontational situations (See: Transcript 11th August, 2004 pg. 62.5).

59. It should be noted that Superintendent Gillett did not place any limitations on the Applicant in respect to shifts and overtime. In respect to this issue the Applicant did not raise any concerns with Superintendent Gillett (See: Gillett parag. 27).

60. As a result of the concerns raised by the Applicant he prepared a report dated 24th January, 2001 (See: Stewart parag. 16 Annex. E; Norris parag. 6 Annex. B; Trindall parag. 24 Annex 3; Gillett parag. 22, 23, 24 Annex. G). The report states the Applicant forwarded the report to Superintendent Gillett for information and further recommendations.

61. As a result of the report dated 24th January, 2001 Superintendent Gillett forwarded it to the Police Medical Section (See: Gillett parag. 25 Annex. H, letter of referral).

62. Superintendent Gillett after he forwarded the report to the PMO he spoke to Dr Norris by phone to inform him of the situation and request urgent advice on what could be done to assist Constable Trindall (See: Gillett parag. 25). The Applicant did not challenge Superintendent Gillett on this information. Subsequently Dr Norris, the Acting Senior Police Medical Officer wrote to Superintendent Gillett on the 22nd February, 2002 suggesting that the Applicant needed to have his fitness for police duties clarified as soon as possible by a clinical hematologist and forwarded same back for his consideration. Further, Constable Trindall was to discuss the situation with his local doctor and to arrange a referral to a hematologist. It was also requested that "he see whether his general practitioner is happy with the current restrictions on his duties" (See: Transcript 29th June, 2004 pg. 75.7-76.1; Gillett parag. 256 Annex. I; Norris parag. 7 Annex. C; Trindall parag. 26)

63. Subsequently Superintendent Gillett spoke to Constable Trindall conveying Dr Norris' request to see his general practitioner for a referral to a specialist hematologist and any comment regarding his work restrictions (See: Gillett parag. 26).

64. It should be noted that Superintendent Gillett last worked for the Police Force on the 4th May, 2001 when he went on annual leave and formally retired on the 13th July, 2001 (See: Gillett parag. 1).

65. The Applicant then attended his GP and was referred to a hematologist, Dr Presgrave (See: Transcript 29th June, 2004 pg. 76.17). Dr Presgrave prepared a report dated 31st March, 2001 (See: Norris parag. 8 Annex. D; Trindall parag. 26 Annex. 5).

66. Subsequently, Dr Ling prepared a report dated 9th April, 2001 which placed restrictions on the Applicant's work activities (See: Stewart parag. 19 Annex. F; Norris parag. 9 Annex. E; Trindall parag. 27 Annex. 6).

67. The condition the Applicant suffers from is not work related. In respect to such a situation there are protocols in place where the Respondent accepts the medical advice of an employee's treating medical practitioners (See: Norris parag. 37, 38, 39, 40, 41; Transcript 10th August, 2004 pg. 70; Stewart Transcript 11 August, 2004 pg. 95).

68. To suggest otherwise in a non work related medical condition, the employer is placed in a position of challenging the contents of specific medial reports.

69. Dr Ling has been a practicing general practitioner since 1980 (See: Transcript 30 August, 2004 pg. 31.5). The Applicant subsequently consulted Dr Ling and he provided a medical certificate dated 9th April, 2001 (See: Transcript 30th June, 2004 pg. 32.8). Prior to providing that certificate Dr Ling referred the Applicant to Dr Presgrave a specialist hematologist (See: Transcript 30th June, 2004 pg. 32.8).

70. In providing the medical certificate of the 9th April, 2004, Dr Ling consulted Dr Presgrave about its contents in respect to the type of duties the Applicant had to perform as a Police Officer. Dr Ling understood that the medical certificate had to be provided to his employer in relation to his condition (See: Transcript 30th June, 2004 pg. 33.5). Dr Ling was aware that his condition was not work related and the certificate had to be provided to his employer in relation to restrictions on his employment. Dr Ling in his position as a general practitioner, who provides a medical certificate, was of the opinion that he would expect an employer to abide by the restrictions that are set out within the medical certificate (See: Transcript 30th June, 2004 pg. 34.5).

71. As a result of his sickle cell trait condition he placed a number of limitations on the Applicant, including severe sudden physical exertion and domestic and other violent situations. Dr Ling appreciated the fact that those situations were part and parcel of a policeman's duty from time to time, and they were placed on him in respect of his sickle cell condition (See: Transcript 30th June, 2004 pg. 35). The certificate was an ongoing certificate provided by Dr Ling in respect to his restrictions (See: Transcript 30th June, 2004 pg. 34.3). Further, Dr Ling had acknowledged that he had been provided with reports from Dr Norris, 8th May, 2001 and a second dated 1st August, 2001.

72. Subsequently, Dr Ling referred the Applicant to Dr Lindeman who produced a report dated 2 July, 2001 (See: Norris parag. 18 Annex. M; Trindall parag. 13 Annex. 8). In Dr Ling's opinion, Dr Lindeman's report was similar to Dr Presgrave's report and he saw no need to change the certificate dated 9th April, 2001 (See: Transcript 30th June, 2004 pg. 37.5). Though Dr Lindeman raised the issue that the Applicant may have to consider alternative employment, Dr Ling, for whatever reason formed the opinion that he did not think that he needed to discuss that with the Applicant (See: Transcript 30th June, 2004 pg. 38). As a result of Dr Lindeman's report the work restrictions continued (See: Transcript 30th June, 2004 pg. 39.1).

73. On the 23rd November, 2001 Superintendent Stewart attended with the Applicant at Narrabri in consultation with Dr Ling (See: Stewart parag. 44, 45, 46).

74. It was made plain to Dr Ling that Constable Trindall would have to remain on restricted duties unless he removed them (See: Transcript 30th June, 2004 pg. 40.2).

75. Dr Ling was aware that his employer could not remove these work restrictions unless medical advice was obtained from him to the contrary. In respect to that position, Dr Ling advised that he did speak to another specialist, whose name he could not recall, and they discussed sending the Applicant to a hematologist who may be able to say that the restrictions can be lifted. Dr Ling said that he based his medical certificate on the advice from the specialist hematologist (See: Transcript 30th June, 2004 pg. 40.7).

76. Though Dr Ling has spoken to this other doctor, he advised that he did not consider referring the Applicant back to Dr Presgrave or Dr Lindeman for further assessment. However, he did write to Dr Presgrave in September, 2001 asking him to reconsider the restrictions, however, he never received a reply from him (See: Ling-2 Annex."A"). He further advised that he sought to contact Dr Presgrave, but he was not available and he did not follow it up. That seems to be a similar position in respect to Dr Lindeman (See: Transcript 30th June, 2004 pg. 41.7-41.2).

77. Dr Ling also expressed the view that he did not discuss the Applicant's conditions with other local general practitioners in the area (See: Transcript 30th June, 2004 pg. 41.2).

78. In respect to Dr Konetey, Dr Ling was of the opinion that he was not a registered medial practitioner in New South Wales and he indicated to the Applicant that he did not have the qualifications to lift the restrictions on the medical certificate (See: Transcript 30th June, 2004 pg. 41.6).

79. It should also be noted that Dr Ling when he received the two reports from Dr Norris didn't think it appropriate to contact Dr Norris to discuss same (See: Transcript 30th June, 2004 pg. 41.8-42.2).

80. In respect to the report of Dr Hertzberg dated 7th August, 2002 Dr Ling received a letter from the Court & Legal Services under the hand of Dr Ball.

81. Dr Ling indicated that he did not have a conversation with Dr Hertzberg, however he did write to him to confirm his opinion. Subsequently, on receipt of the further advise from Dr Hertzberg, Dr Ling prepared a further letter dated 11th October, 2002 where he allowed Mr Trindall to return to regular police duties without restriction.

82. The Applicant subsequently returned to on operational duties.

83. An issue I seek to raise, when I objected to a question from [the Court], where you asked Dr Ling "Q. The other thing I want to ask you doctor is that with the benefit of what you now know and looking at the various specialist opinions, including those of Professor Hertzberg, do you now accept the certificate issued by you on 9th April, was wrong? A. It was inappropriate" (See: Transcript 30th June, 2004 pg. 45.9)

84. [The Court] will recall that I objected to that line of questioning. However, [the Court] took the matter further in respect to the original medical certificate dated 9th April, 2001.

85. Dr Ling made the very important point "That recommendation though is based on specialist opinions as well. It is true that I have limited understanding of the sickle cell trait condition. So I base-the basis of that certificate is from the specialist report, plus a conversation with the specialist to write a certificate" (See: Transcript 30th June, 2004 pg. 46.8). The doctor further agreed that it was inappropriate to say the certificate of 9 April, 2001 was inappropriate because it was prepared one, by himself as a medical practitioner and secondly, in consultation with Dr Presgrave who is a specialist hematologist, and Dr Ling agreed with that proposition. Further, that report, Dr Ling was subsequently substantiated by the report he obtained from Dr Lindeman (See: Transcript 30th June, 2004 pg. 47).

86. The point I raise is this, that it would be totally inappropriate to retrospectively question the validity of a medical certificate that had been prepared on the advice of a specialist hematologist in 2001. Dr Ling is not in a position to say, that the specialist opinion had been inadequate at the time having regard to the knowledge that is now available concerning the trait. Further, Dr Ling cannot provide an opinion as to the present position of Dr Presgrave and Dr Lindeman on this issue. As [the Court] would be well aware medical specialists have conflicting opinions on all sorts of medical conditions. As at April, 2001 Dr Ling had taken his specialist advice on the condition and had provided that report to his employer.

87. To take the matter further, Dr Presgrave and Dr Lindeman would have to be cross-examined that their specialist opinions in 2001 were not correct. Their reports have not directly been challenged by the Applicant, by way of Cross-Examination.

88. Further, the Autopsy Report dated 20th November, 2000 would have to be challenged.. Dr Sugo was not required for cross-examination.

89. The Respondent was not in a position to question the medical certificate in relation to the non-work condition. On the 17th April, 2001 Constable Trindall emailed to Dr Norris asking for a consultation in respect the report of Dr Presgrave dated 31 March, 2001 (See: Norris parag. 10 Annex. F) an appointment was made in Sydney on the 1st May, 2001 (See: Norris parag. 11 Annex. G).

90. In respect to the consultation on the 8th May, 2001 Dr Norris in cross examination advised that he had already had a certificate from his doctor issued on the 9th April, 2001. Dr Norris makes the important point that he would have provided it to the Local Area Commander which would have been normal. He goes onto say they get certificates all the time from doctors and they would be expected to act on individual medical certificate(s).

91. It is not for the employer for a non-work related condition to form the view that the certificate provided by a registered New South Wales doctor is inappropriate in respect to any employee (See: Transcript 10th August, 2004 pg. 28.7). Dr Norris took the position that the normal action in a situation like this was to recommend that the constable would go back and discuss the matter with his own general practitioner, to provide an opinion. That action was taken in this case. Dr Norris makes the point that was the standard procedure. Dr Norris makes the point, if it had been the opposite and a general practitioner was going against the specialist's advice in terms of saying that Constable Trindall was fit, if a specialist was saying that he wasn't, then we would have taken a different attitude because there would have been "a safety issue" for us, our role is to make sure that safety is maintained. There was no problems with safety in this situation. Dr Norris indicated the normal procedure had been followed to send the officer back to the GP to resolve the question, and that's what had been done in this case (See: Transcript 10th August, 2004 pg. 30.5).

92. In that consultation on the 7th May, 2001 the Applicant indicated that he would be seeking further hematological opinion, until that time he agreed to continue on restricted duties (See: Norris parag. 13).

93. On the 8th May, 2001 Dr Norris provided his report (See: Trindall parag. 29 Annex. 7) that report was made available to the Applicant, the Rehabilitation Officer, Dr Ling and also to Dr Berdoukas.

94. It was recommended that Constable Trindall see Dr Berdoukas, who was recommended by Dr Presgrave who was engaged by the Applicant's G.P..

95. In that report dated 8th May, 2001 Dr Norris sets out the restrictions, along with the reference to Dr Ling's report on pg. 2. Subsequently, on the 14th May, 2001 there was a meeting at the Moree Police Station with Superintendent Stewart, the Applicant and Inspector Harvey which discussed Dr Norris' report dated 8 May. At that time arrangements were made for the Applicant to travel to Sydney to see Dr Berdoukas on the 4th June, 2001 (See: Stewart parag. 22, 23, 24, 25, 25, 26). It should be noted that the Applicant writes to Dr Norris on the 16th May, 2001 advising that he consulted Dr Ling, who informed the Applicant that the restrictions had been drafted after consulting Dr Presgrave, who made the recommendations (See: Norris parag. 17 Annex. L).

96. In response to the situation, Dr Berdoukas was apparently overseas and a consultation was made with Dr Lindeman, a Hematologist on the 4th June, 2001 (See: Stewart parag. 27 Annex. H). Dr Lindeman provided a report dated 2 July, 2001 in respect to the Applicant's condition (See: Norris parag. 18 Annex. M; Trindall parag. 13 Annex. 8).

97. From about 5th July, 2001 the Applicant made a workers compensation claim for stress and it would appear that he was off work until approximately 24th September, 2001 (See: Williams parag. 8q). Subsequently a further referral was sent to the PMO seeking a review of Constable Trindall on the 15th July, 2001. The referral stated that the Applicant was on seek leave and had been certified unfit owing to his psychological injury (See: Norris parag. 19). However, as a result of that Dr Norris saw Constable Trindall on the 17th July, 2001 in Dubbo (See: Norris parag. 20).

98. At the consultation on 17th July, 2001 the Applicant displayed, in Dr Norris' view, a dichotomous attitude to his condition which made resolution of his situation difficult. On one hand he wanted to return to operational duties, yet at the same time he displayed concerns about his sickle cell trait which remained unresolved. Dr Norris denied that he said to the Applicant "your GP has done this, its his fault". Paragraph 55 of the Norris affidavit, the doctor tried to explain to the Applicant simply that the certification by his GP and the restrictions that they represented were the reasons why he remained on those duties. That denial appears to be accepted by the Applicant's Counsel where he was not challenged on that issue (See: Transcript 10th August, 2004 pg. 46.4).

99. One other interesting point during that exchange was a comment in respect to Trindall's affidavit in paragraph 40 where it was suggested...."These restrictions are crap, my only mistake was trusting the fools by putting a report in....do you remember him saying those words? I can't recall him saying those specific words. I mean, he was fairly upset at the time, so I, you know, he could have, you know, I wouldn't say he didn't say those words to that effect." Dr Norris could not recall specifically those words, but what is interesting is a suggestion that the Applicant's "mistake was trusting the fools" by putting in a report. That suggests a proposition that there was some sort of "conspiracy" going on by his superiors. I would make this point, that such a serious allegation was not suggested to any of the Respondent's witnesses. I submit, properly so, because there was absolutely no evidence that could support such an outrageous contention.

100. However in the Applicant's submission, paragraphs 37 & 38 inter alia, such a proposition is submitted. The Applicant submits in paragraph 38 "In light of the circumstances referred to in the paragraphs above, it is open to the Court to find that representatives of the Respondent sought to exploit the circumstances of the Applicant's medical condition to deny him opportunities in his employment and ultimately seek to have him removed from the police service."

101. To ask a Court to make such a serious finding, this proposition of "conspiracy" should have been put directly to the Respondent's witnesses. It was not. On the facts of the case, I would submit such an outrageous submission should be rejected.

102. Subsequently, Dr Norris provided a report dated 1st August, 2001 where the Applicant was placed on permanent restrictions (See: Norris parag. 21 Annex. P; Stewart parag. 31 Annex. K).

103. In respect to Dr Konetey, Dr Norris received a fax from the Applicant on the 7th August, 2001 (See: Norris parag. 22) Dr Norris expressed the opinion that if he was the person making the decision about the Applicant's fitness and was depending on Dr Konetey's credentials, he expressed the view that he would have significant doubts about his credentials, but he makes the point that he wasn't in that situation (See: Transcript 10th August, 2004 pg. 48.5).

104. It is a further significant point that Dr Norris makes is that he couldn't be in position to accept Dr Konetey's position opinion as he was a doctor from overseas (which Dr Norris questioned). He states: "if it came down to that, and it never did, come down to accepting his opinion of two Australian qualified registered hematologists, it would never come to that. It would have been a consideration, but it never came to that" (See: Transcript 10th August, 2004 pg. 49.5).

105. Though Dr Norris expressed his own opinion in respect to the position of the Applicant, he makes the important point that he has a medical certificate from his treating G.P. which has been provided after consultation of two referred specialists by his treating doctor. He was not in a position to return the Applicant back to operational duties in such a situation.

106. At that meeting on the 17th July, Ms R Williams, Occupational Health & Safety Co-Ordinator was also present at that meeting. It is submitted she supported the contents of that consultation, and, notes that Dr Norris encouraged Constable Trindall to continue working on suitable duties before making any decision in respect to his future. It was also discussed that the other opportunities of operational roles within New South Wales.

107. It would then appear from about 16th August, 2001 that the Applicant went off on stress [leave]. It would appear that the Applicant did not return to work until the 24th September, 2001 on restricted duties (See: Williams parag. 8Q).

108. It is interesting to note that on the 20th September, 2001 Ms Williams telephone Dr Ling and asked "what can New South Wales Police do to assist Constable Trindall's situation?" Dr Ling simply replied "Counselling. I am waiting on a written reply from a haematologist regarding Constable Trindall's condition/work restrictions. There is no alternative at this point, but to wait for further specialist advise." That evidence has not been challenged by the Applicant (See: Williams parag. 8N).

109. The Respondent was not in a position to unilaterally act and return the Applicant to his normal duties when he has a current work restriction placed on him by his treating doctors. The responsibility to obtain a further report lay with his general practitioner as this matter solely related to a non work issue. On the 21st August, 2001 in respect to the Applicant's condition there was a meeting at the Narrabri Police Station where Superintendent Stewart, Constable Trindall and Ms Williams were present (See: Stewart parag. 32-39; Williams parag. 8H).

110. Superintendent Stewart rejected the suggestion at that meeting that he could not accommodate the Applicant for very long (See: Transcript 8th September, 2004 pg. 22.8). Otherwise, the contents of that meeting do not appear to be challenged by the Applicant.

111. I refer the Court to the affidavit of Ms Williams. In particular I refer the Court to paragraph 8 which shows a continual contact by her with the Applicant's treating doctor in respect to his care and concerns in respect to his future with the Respondent. The Respondent has shown that there is a system in place to consult with a worker's treating medical practitioners to provide assistance seeking the return to work of that employee. After his return to work on the 24th September, 2001 where he returned to his pre-injury duties you will note from Ms Williams affidavit in paragraph 8 that she continues to liaise with the Applicant in respect to his situation.

112. It is important to note that Superintendent Stewart, subsequent to the meeting on the 21st August, kept in contact with the Applicant (See: Stewart parag. 40, 41). Superintendent Stewart made it clear that the Respondent could not return him to normal duties unless his treating doctors provided to the PMO a certificate certifying him fit for fully operational duties.

113. It should be noted that by November, 2001 the Applicant indicated that he was getting nowhere with his GP, he offered that he attend a consultation with his GP.

114. There is an exchange of emails in respect to organizing an appointment with Dr Ling at Narrabri (See: Stewart parag. 43).

115. On the 23rd November, 2001 Superintendent Stewart attended with the Applicant at Dr Ling's surgery (See: Stewart parag. 44, 45, 46).

116. Superintendent Stewart was not challenged on his evidence in that respect (See: Transcript 8th September, 2004 pg. 123.8-124). What is very important in respect of that consultation is that it is acknowledged that Dr Ling is the Applicant's treating doctor and he states: "I must follow the specialist who made the recommendations".

117. It was made clear to his treating doctor, by Superintendent Stewart that the Applicant wanted to return to be on full operational duty and could he seek to have those restrictions lifted, otherwise his career path was in jeopardy.

118. The Respondent could not be more supportive of the Applicant in seeking to have him return to work. That was not challenged at all by the Applicant.

119. The Respondent has a Common Law duty of care to the Applicant to ensure that he works in a safe environment. Further, the Respondent is regulated in New South Wales by the Occupational Health & Safety Act. If the Respondent unilaterally returned the Applicant to his work without restrictions, contrary to the medical certificate provided by his medical doctor(s), the Respondent would expose itself to civil litigation at Common Law and penalties pursuant to the Occupational Health & Safety Act.

120. After the meeting with Dr Ling, Commander Stewart suggested to the Applicant that he seek further medical advice (See: Stewart parg. 46). That situation was not challenged by the Applicant (See: Transcript 8th September, 2004 pg. 124, 125).

121. Subsequent to the meeting with Dr Ling on the 23rd November, 2001 Superintendent Stewart had discussions with the Applicant encouraging him to explore alternative work such as the Criminal Investigation Unit. However, the Applicant was not inclined to follow this course.

122. Superintendent Stewart writes to Dr Norris as a follow up to his last report dated 1 August, 2001 and advises that the Applicant should be subsequently reviewed (See: Stewart parag. 49 Annex. M; Norris parag. 23 Annex. R).

123. In the memorandum dated 29 January, 2002 it is clear that Superintendent Stewart is well aware of the employee duty of care owed to its employee, that is, placing him in a safe working environment. In that memorandum, he sets out the circumstances which has lead up to this situation, he requests this further review so as to determine his future, and, he seeks clarification prior to speaking to the Applicant.

124. It should also be noted in the memorandum he notes correctly that the Applicant's medical team has been unmoved by the overseas specialist advice, Dr Konetey (See: Transcript 8th September, 2004 pg. 126.5).

125. Superintendent Stewart was seeking "an independent review" of the Applicant's situation (See: Transcript 8th September, 2004 pg. 126-127). It is interesting to note that Ms Williams on the 12th February, again contacted Constable Trindall.

126. It should also be noted that on the 12th February, 2002 Ms Williams telephoned Constable Trindall and was advised that Dr Ling had not received any further information from the Hematologist, and, therefore he was to remain on restricted duties. He advised that he would again speak to Dr Ling in respect to the situation (See: Williams parag. 8U).

127. On the 18th February, 2002, Commander Stewart advised Ms Williams that he was going to meet with Dr Norris on the 18th February, to discuss Constable Trindall's restrictions and obtain advice from Health Quest (See: Williams parag. 8V).

128. On the 21st February, 2002 Superintendent Stewart attended the office of the Police Medical Officer, Dr Norris and discussed the Applicant's situation (See: Stewart parag. 50; Norris parag. 24, 48, 49 Annex. S (medical file note) Transcript 8th September, 2004 pg. 126.3-127).

129. In respect to the meeting on the 21st February, 2002. Dr Norris advised (he agreed in principle, with the opinion of Dr Konetey), however, he is not in a position to remove the restrictions which have been placed on Constable Trindall, as these restrictions have been placed on Constable Trindall by his GP as a result of the opinions of two (2) Hematologists that Constable Trindall had been referred to. A crucial issue in this case is, the Respondent is not in a position to act contrary to the medical opinion of the Applicant's treating doctors (See: Norris parag. 24).

130. It should be noted that the Applicant did not challenge Dr Norris on this principle.

131. In response to the meeting on the 21st February, 2002, Superintendent Stewart again forwards a memorandum to Dr Norris dated 27th February, 2002 (See: Stewart parag. 51, 52, 53 Annex. N; Norris parag. 25 Annex. T).

132. In that memorandum Superintendent Stewart specifically states: "I advise that I do not wish Constable Trindall to be reviewed for the purpose of medical discharge from the service, but rather he be reviewed, as stated to determine his fitness for general duty policing. Once this review has occurred, based on the recommendations of Health Quest, further deliberation shall be undertaken as to the officer's future within the service.".

133. The Applicant did not challenge the position of Superintendent Stewart on this issue (See: Transcript 8th September, 2004 pg 127, 128).

134. The Applicant had an appointment to undergo an assessment by Health Quest on the 13th May, 2002 (See: Stewart parag. 53, in accordance with Annex.N; See: Transcript 8th September, 2004 pg. 128.9).

135. In response to that, Dr Norris wrote to Health Quest on the 13th March, 2002 (See: Norris parag. 26 Annex.U) it is submitted that Annex. U is a very important piece of evidence in that it outlines the history of the Applicant and seeks a medical review for fitness for his operational duties.

Dr Norris, again at pg. 2 of the report, specifically requests a review in respect to his fitness for operational duties, noting that the Applicant requests that the restrictions be lifted on him. Further, he makes the point that the Applicant is under the belief that the restrictions are those of the New South Wales Police. Its made quiet plain that they are not placed there by the Respondent and can not be removed by the Respondent. It should be noted that the medical file is attached.

Unfortunately, the process goes of the rails. However [that was] not the fault of the Respondent. The medical discharge unit received Dr Norris' letter on the 14th March, 2002 (See: Crellin parag. 3).

In the affidavit of Crellin he sets out the subsequent circumstances. It should be noted that the Applicant did not attend his appointment with Health Quest and a letter was received from his Solicitor dated 9th May, 2002. Mr Crellin advises that he had no further involvement in the matter (See: Crellin parag. 7 Annex. C). The Applicant in or around May was informed by Gary Trindall, the letter from the workers compensation branch (See: Trindall parag. 49 Annex. 11).

The letter is from the Workers Compensation & Review branch indicating that the Police Medical Officer (PMO) has submitted an advising to the police service recommending that [the applicant] be medically discharged. On review of the material that has gone forward, at no time did Superintendent Stewart or Dr Norris seek the medical discharge of the Applicant. As a result of that letter, the Applicant lodged a complaint to the Human Rights & Equal Opportunity Commission on the basis of disability and race discrimination (See: Trindall parag. 50 Annex. 120.

136. The Applicant was unable to give an explanation(s) as to why he did not contact Superintendent Stewart after he was informed by Garry Trindall of the letter that had been sent (See: Transcript 30th June, 2004 pg. 21.1).

137. The Applicant was unable to give any explanation or reason as to why he did not contact Superintendent Stewart or Dr Norris in respect to this referral (See: Transcript 30th June, 2004 pg. 24-25).

138. On the 9th May, the Applicant's solicitors wrote to Health Quest stating that they did not consider any examination should proceed until the discrimination complaint had been dealt with. It should be noted that that letter has not gone into evidence (See: Trindall parag. 50). The proposed review by Health Quest of the Applicant's condition did not take place on the 13th May, 2003 (See: Stewart parag. 53 Annex. N).

139. Superintendent Stewart became aware that Constable Trindall did not attend the consultation with Health Quest (See: Stewart parag. 54, 55).

140. On the 17th June, Dr Norris prepared a report for Ms Karen Hardy, Court & Legal Services New South Wales Police (See: Norris parag. 27 Annex. V). Subsequently, legal services obtained a report from Dr Hertzberg dated 7th August, 2002 and Dr Norris was asked to comment on same (See: Norris parag. 28 Annex. W) Dr Norris responded by way of report dated 12th August, 2002 again advising he was happy for the Applicant to return to operational duties, he could still not clear him unless his treating doctor also agreed to review the restrictions that were currently in place (See: Norris Annex. W).

141. Dr Ling provided a report dated 11 October 2002 to Dr Norris (See: Norris Annex. Y) in which he removed the restrictions (See: Norris parag. 30 Annex. Y). On the 18th October, Dr Norris wrote to Mr Ball advising that the Applicant could return to operation duties as per the restrictions recommended by Dr Ling (See: Norris parag. 31 Annex. Z). The Applicant subsequently returned to normal duties from or about March, 2003 (See: Transcript 30th June, 1994 pg. 28).

142. The Applicant was transferred to the Narrabri Police Station in the Barwon command on or about 16th May, 2000 (See: Gillett parag. 4, 9 Annex. A; Inspector Cairncross parag. 11(b)).

143. On the 25th May, 2000 the Applicant sought to receive a dispensation from Superintendent Gillett which would exclude him from Olympic duty (See: Stewart parag. 6 Annex. A; Gillett parag. 9 Annex. A). Arrangements were made for a substitute for the Applicant (See: Gillett parag. 9, 10).

144. Previously the Applicant had been advised that he had up to the 30th June, 2000 to organize another officer to take his place at the Olympics. He was advised the 30th June had been nominated by the Olympic security command centre, as a final date by which alterations to the schedule of officers to undertake duties were to be submitted. During the week, 17th July, 2000, Constable Coates at Narrabri agreed to take the Applicant's place at the Olympics. Inspector Welsh advised Superintendent Stewart that Constable Trindall had been able to secure Constable Coates of Narrabri to swap on Olympic duties. Superintendent Stewart advised Inspector Welsh that the deadline for Constable Trindall's change of officers could now not be accommodated as the deadline set by the security committee for the arrangements was the 30th June, 2000.

145. Inspector Welsh notified the Applicant that he was still obliged to undertake his Olympic duties given the deadline of the 30th January, 2000 (See: Gillett parag. 10 Annex. B). On the 17th July, 2000 Constable Trindall phoned Superintendent Stewart at Moree Police Station concerning the matter, Superintendent Stewart reinforced information provided by Inspector Welsh earlier that day.

146. The Applicant did not offer any explanation additional to that outline within his report dated 25th May, 2000 to support his motivation to do relief from Olympic duties. It was noted that during this conversation that Applicant became extremely abrupt. Superintendent Stewart agreed to meet with the Applicant that afternoon at Narrabri to personally address any of the concerns over the performing of his duties.

147. Later on the 17th July, 2000 Superintendent Stewart spoke to Inspector Carincross and indicated that the Olympic Security Command Centre would accommodate Trindall's proposed swap with Constable Coates, given that they were from the same station. Later that day Stewart traveled to the Narrabri Police Station and spoke personally to the Applicant and Constable Coates. At that time both were advised they could carry out the swap.

148. On the 25th July, 2000 Superintendent Stewart in a telephone exchange with Inspector Cairncross informed Superintendent Stewart that was no long possible to exchange Coates for Trindall on the Olympic duties. Inspector Welsh informed both the Applicant and Coates of this situation (See: Gillett parag. 10 Annex. B; Stewart parag. 8 Annex.8). It should be noted that subsequent to that advice on the 25th July, 2000 Constable Trindall did not obtain any medical reports or certificate advising that he would not be attending the Olympics in Sydney.

149. On the 8th September, 2000 Superintendent Gillett advised Inspector Cairncross, informing him that the Applicant would not attend the Olympic games. At that time, it is submitted the Applicant disobeyed a lawful direction (See: Cairncross parag. 11(c)). Subsequently on that day Superintendent Stewart provided a written direction to the Applicant directing him to perform his duties (See: Gillett parag. 12 Annex. C). Subsequently on that day, the Applicant refused the direction to attend Sydney on Sunday, 8th September, 2000 (See: Gillett parag. 11 & 12 Annex. B & C; Stewart parag. 7 & 8 Annex. B; Cairncross parag. 11(c) Annex. B). It should be noted the police contingent were to take up their duties at the Olympic venue on the 10th September, 2000.

150. On Monday 11th September, 2000 Superintendent Stewart and Inspector Gillett interviewed the Applicant at Narrabri Police Station regarding his refusal to attend his Olympic duties (See: Gillett parag. 13, 14, 15, 16 Annex. A). Further on that day Superintendent Gillett directed the Applicant in his duties. A recommendation was made for the 19th October, 2000 (See: Gillett parag. 16 Annex. D-Recommendation 19th October, 2000).

151. On 11th September, 2000 there was an interview at the Narrabri Police Station between Superintendent Gillett and Stewart who spoke to the Applicant (See: Gillett parag. 13). Subsequently, Gillett advised the Regional Commander, Cairncross of Trindall's situation and discussed disciplinary action. It was agreed to a mediation process to the alternative of taking disciplinary action against the Applicant.

152. On the 18th September, 2000 Stewart phoned Gillett advising that the Applicant was refusing to attend duties (Re: Schedule colonoscopy procedure - 26 September; See: Gillett parag. 11). At this time the matter then became complicated to the extent that on the 28th September, 2000 the Applicant's brother, Rodney Trindall became involved in an altercation which resulted in his admission to the Narrabri Hospital. On the 30th September, 2000, Rodney Trindall was transferred to the Tamworth Hospital and Sergeant White became involved in the investigation (See: White parag. 4). The situation report was prepared on the 1st October, 2000 (See: Gillett parag. 20 Annex. E). Unfortunately, on the 2nd October, 2000 the Applicant's brother passed away (See: Gillett parag. 20). On the 2nd October, 2000 Detective Inspector Stewart wrote a Situation Report (See: Gillett parag. 20 Annex. F). In early October, Inspector Cairncross was advised of the death of Rodney Trindall (See: Cairncross parag. 5). Inspector Cairncross advised Superintendent Gillett of the Applicant's condition and the effect of the Coronial Inquest on him (See: Cairncross parag. 7 & 8).

153. On the 1st October, 2000 Superintendent Stewart was advised by Inspector Organ, duty officer at Narrabri Police Station of the death of Rodney Trindall (See: Stewart parag. 11 Annex.C).

154. Superintendent Stewart was of the opinion, as a result of his refusal to go to Sydney, he faced serious disciplinary action (See: Transcript 11th August, 2004 pg. 38-40).

After deliberation, the Respondent considered various issues and decided to deal with this matter as a mediation process, as an alternative to taking departmental action against the Applicant (See: Gillett parag. 17).

As a result of the mediation process, no further departmental action was taken against the Applicant (See: Gillett parag. 19).

The inadequacy of the mediation was challenged by the Applicant in respect to Superintendent Gillett's evidence (See: Transcript 11th August, 2004 pg. 45-50). However, the outcome of the mediation process was not traversed with Mr Gillett.

It is submitted, that the Olympic issue was dealt by the Respondent, with great sensitivity, in regards to the Applicant's situation.

To suggest it was the basis for the Respondent to seek to remove the Applicant from the police service is completely without merit (See: Applicant's submissions parag. 37, 38).

155. The Applicant was of the opinion that he had lost promotional opportunities because he had been placed on work restrictions. He indicated he had been in the Police service for nine years, and had not progressed from the position of Constable. He attributed that lack of progression as being placed on work restrictions and not able to complete the Constable Development Program (See: Trindall - 1 parag. 52).

156. In contrast, the Applicant agreed that there were no restrictions on his ability to seek promotion whilst on his restricted duties (See: Transcript - 30 June, 2004). To progress to the rank of Senior Constable, the Applicant had to complete the Constable Development Program (See: Transcript 30th June, 2004 pg.5.7). He was also aware that the Constable Development Program had now been superseded by an academic course of study, which had to be completed in the Constable's own time (See: Transcript 30th June, 2004 pg. 5.9).

157. During the years 2001-2003 there was no impediment on the Applicant carrying out that program whilst on restricted duties. It is also submitted, that also related to the academic course of study, in that there was no restriction for the Applicant undertaking that course (See: Transcript 30th June, 2004 pg. 6.2 Trindall 2 parag. 27).

158. Superintendent Stewart advised that the Applicant was able to complete the Constable Development Program and qualify for the promotion to the rank of Senior Constable and there was no restriction on his ability.

159. Superintendent Stewart advised that the Constable Development Program had now been replaced by an academic course of study which was also available to the Applicant, and he was not aware of any matter that precluded the Applicant from successfully completing that course of study (See: Stewart parag. 58, 59, 60 & 61).

160. In respect to the history dealing with the Applicant's promotion, Sergeant Lang provided a statement and also gave evidence on the 11th August, 2004. Sergeant Lang gave evidence that the Applicant was able to commence the Constable Development Program from 1999 where the program involves the completion of 6 subjects. He advised that if a person took a minimum of 1 subject per trimester it would take about 2 years to complete the program. From the records, Sergeant Lang was able to advise that up until May, 1999 the Applicant had not passed any of the subject requirements.

161. Sergeant Lang gave evidence that from 1999 he could go back and attempt to do the programs, and according to the records he had not attempted to undertake same. She also advised that since May, 2001 Constable Trindall was able to undertake the academic course to reach the promotion to the rank of Senior Constable (See: Transcript 11th August, 2004 pg. 7.5).

162. It was submitted that up until 1999 [the applicant was] not precluded from attempting to reach the rank of Senior Constable. Subsequently the Applicant was able to pursue his course from May, 2001 to obtain the rank of Senior Constable. He has not attempted to do the course to obtain the rank.

163. Though he has been subjected to stress as a result of the death of his brother and the effect of the sickle cell trait in relation to his own employment, he has not been precluded by the Respondent in attempting to obtain the rank of Senior Constable. Further, though he has attended a number of doctors, ... [there is no evidence] that he is, from a medical point of view, unable to attempt the course itself (See: Transcript 11th August, 2004 pg. 3-15).

164. It is also submitted that during the time that he was placed on restricted duties, he was encouraged to seek alternative career paths within the Police force (See: Trindall 2 parag. 24).

165. At the meeting on the 14th May, 2001 at the Moree Police Station they discussed employment alternatives within the New South Wales Police force that could accommodate his restrictions (See: Stewart parag. 26). Further, during December, 2001 Superintendent Stewart had discussions with the Applicant concerning his interest he had shown in the Criminal Investigation Section, Superintendent Stewart, on his behalf explored the possibility as to whether they could accommodate in that section. However, after some deliberation the Applicant declined that offer (See: Stewart parag. 48).

166. Superintendent Stewart confirmed that position that there was an opportunity in the criminal investigation unit (See: Transcript 8th September, 2004 pg. 1.5-126.3). See discussion by Superintendent Stewart in relation to the opportunities for the Applicant if he involved himself in the criminal investigation (See: Transcript 11th August, 2004 pg. 97.5-98).

167. Further, in respect to the meeting that occurred on the 1st August, 2001 Superintendent Gillett also discussed with the Applicant alternative forms of employment within the Police force (See: Transcript 8th September, 2004 121.6-122.5).

168. In the daily activities of a Police Constable, the Applicant was exposed to various situations, including situations that can become physically violent within a short period of time. The Applicant in his evidence acknowledged the various aspects of his work which exposed him to physical violence (See: Transcript 28th June, 2004 pg. 61.5-64.5).

169. Inspector Cairncross informed the Court of the day to day activities of a Police Constable and informed the Court that violent situations can happen at a moments notice. He gave examples where a non-violent situation can quiet quickly turn into a situation where possible life of loss could occur, involving physical struggles, fighting etc., a simple situation can escalate quiet quickly into a violent situation exposing an officer to severe physical assault (See: Transcript 10th August, 2004 pg. 72-73).

170. Mr Gillett (retired Inspector) also set out exposure of a Police Constable in the carrying out of his daily duties for violent situations (See: Transcript 11th August, 2004 pg. 18.8-19.5). Superintendent Stewart, also set out from his own experiences the exposure of Police Officers to violent situations in the carrying out of their day to day activities (See: Transcript 11th August, 2004 pg. 98.5).

171. I refer to the Applicant's first Affidavit in respect to paragraph 18, where he travelled to the Moree Police Station with John Ridley.

172. The Applicant appears to be of the opinion that the mediation in respect to the Olympic issue and the meeting in respect to advising Superintendent Gillett occurred on the same day. However, it would appear that these 2 events occurred on 2 separate occasions. In paragraph 18 he states: "Sergeant Ridley had asked me about my sickle cell trait on the journey to Moree that morning, and I explained it to him. I am not sure how he was aware that I had sickle cell trait".

The Applicant rejected the proposition that he had informed Sergeant Ridley about his condition (See: Transcript 29th June, 2004 pg. 42.8-42.1). It was suggested to the Applicant that he spoke to Sergeant Ridley on the 5th January, 2001 in respect to his roster for that period.

173. The Applicant rejected that he did not inform Sergeant Ridley that himself, his father and his cousins had a genetic blood disorder called sickle cell trait (See: Transcript 29th June, 2004 pg. 43.3).

174. He rejected that he informed Sergeant Ridley that he had sickle cell trait which was not common in Australia, but common in Africa and America. He rejected that proposition (See: Transcript 29th June, 2004 44.1).

175. The Applicant rejected any recollection of a conversation on the 5th January, 2001 were he brought to the attention of Sergeant Ridley about his concerns regarding his condition (See: Transcript 29th June, 2004 pg. 44.8).

176. Further, the Applicant's (cross-examination) recollection appears to worsen in respect to this alleged meeting with Sergeant Ridley on that day. The Applicant rejected that he had any conversation in Sergeant Ridley's office. However, there was a discussion of some sort in the motor vehicle accident, and in his opinion, he does not recall coming forth to Sergeant Ridley. Further, he rejects that he had a detailed conversation with Sergeant Ridley about his concerns of his brother and the impact of sickle cell trait (See: Transcript 29th June, 2004 pg. 46.3).

177. Further, he rejected further details of the discussion with Sergeant Ridley on the 5th January, 2001 (See: Transcript 29th June, 2004 pg. 47.2). Further, he has no recollection of informing Sergeant Ridley that he had the same genetic disorder as his brother (See: Transcript 29th June, 2004 pg. 404 at 47.6).

178. The Applicant continues to fail to recall any of the details with the alleged conversation with Sergeant Ridley on the 5th January, 2001.

179. Over the ensuring period of cross-examination the Applicant continues to reject the majority of propositions put to him in respect to the conversation with Sergeant Ridley on the 5th January, 2001.

180. The Applicant concedes that he had a conversation with John Ridley going up to Moree. He rejected the detail that I put to him in respect to the conversation with Dr Ridley on 2001 (See: Transcript 29th June, 2004 pg. 46-52.2).

181. Further, in that exchange the Applicant rejected a suggestion regarding that conversation and the Applicant answered: "No, and if you were going to ask before how he came to lodge this, I would suggest, like with the Olympics, that, as in this room beside my farther - I mean, I am the only Aboriginal face here and those blokes there - alright, obviously they are going to have a - it's a system, its about careerism, okay obviously they have had a scrum down about it, I don't know, I cant explain those things".

182. When explored in respect to "the scrum down", the Applicant conveyed to the Court, that in his opinion, the officers had got together and spoken about his condition, and as such, it would appear that Sergeant Ridley was a part of this so-called "conspiracy" (See: Transcript 29th June, 2004 pg. 48.2-49.1) to get him.

183. In respect to the mediation, (the Olympics issue) and the issue advising Superintendent Gillett of the Applicant's sickle cell condition it would appear to be 2 different days. However, the Applicant rejected that contention.

184. It would appear to be the Applicant's view that they occurred on the same day (See: Transcript 29th June, 2004 pg. 52.6-53.2).

185. At the meeting in Moree in respect to the advice of his sickle cell condition, the Applicant opined that it was not he who wanted to inform the Police force of his concerns, but he was rather "set up" to inform Superintendent Gillett of his concerns, then, the Respondent has used that against the Applicant in an attempt to, in some way bring about a termination of his employment. I would submit that that contention must be rejected on the evidence.

186. In respect to the meeting that took place at Moree, the Applicant said that I had been told to inform you (Superintendent Gillett) about the sickle cell. The Applicant goes on to state because he wanted to know I was to raise it with him (See: Transcript 29th June, 2004 pg. 53.8).

187. In respect to the meeting, the Applicant rejected the proposition that he said to Superintendent Gillett that a violent confrontation could trigger the condition with similar consequences to that of his brother. He rejected that contention. The Applicant said "I never said it would happen to me, no" (See: Transcript 29th June, 2004 pg. 54.3-53.8).

188. He then goes on to suggest that Garry Trindall was used as "the middle man", so to speak, in respect to relaying his condition to Superintendent Gillett (See: Transcript 29th June, 2004 pg. 54.8). I would submit that the Applicant was very evasive when asked about questions about his uncle, Garry Trindall, leading up to this meeting at Moree (See: Transcript 29th June, 2004 pg. 55). It is submitted that the Applicant attempts to deliberately play down his "concern" in respect to his sickle cell trait condition in relation to his employment duties (See: Transcript 29th June, 2004 pg. 56).

189. The Applicant then goes onto state that he was not concerned for his own welfare, because of his medical condition, however, he was told to go and seek Superintendent Gillett. He states: "I never went there with the thought in my mind to go and raise concern with him. If anything, he raised concerns because it was a welfare issue and will look after it. Like there is no - by the same token, I don't deny, I probably would have thought that, but yes".

190. What the Applicant is attempting to imply, is that there was some sort of arrangement (conspiracy) by the Respondent to get the Applicant to advise it of his condition, so that it could be used to his determent. This is taken up further, where the Applicant suggested he only became concerned about his personal welfare on return to normal duties at the beginning of 2001 after the discussions with Superintendent Gillett.

191. Further, he rejects his advice to Sergeant Ridley in respect to his concerns about his conditions on return to work. I suggested to the Applicant that he was being evasive about the conversation in respect of Ridley (See: Transcript 29th June, 2004 pg. 65.5). He goes on to state that it was Mr Gillett that was indicating his concern for his personal welfare and that the catalyst of this whole situation was Superintendent Gillett (See: Transcript 29th June, 2004 pg. 66.3).

192. It is submitted that what the Applicant is attempting to convey in his evidence is that he wanted to return to work and have a normal life. However, this situation was all brought about by Superintendent Gillett. I submit that the Applicant continued to be evasive in respect to his concerns (See: Transcript 29th June, 2004 pg. 66, 67, 68 and 69). However, when shown his statement (See: Annex. 2 to his Statement dated 22 January, 2004) when asked about parag. 3 on pg. 3 in respect to his concerns he was asked whether he had genuine concerns about his condition, he eventually begrudgingly made the concession "yes, it is correct, yes" (See: Transcript 29th June, 2004 pg. 70). The Applicant subsequently conceded that the person who advised him to raise his condition with Superintendent Gillett was his uncle, Garry Trindall.

193. It should be noted that his uncle has not been called to give evidence on behalf of the Applicant. I would submit that an adverse inference can be drawn in that he would not assist the Applicant's case (See: Jones v. Dunkell).

194. In respect to the second Affidavit of Mr Trindall dated 25th June, 2004 at paragraph 12, he states: "I believe I have been mislead into putting in a report about my sickle cell trait by being told that I was to receive help and support which did not occur. I felt as though I had been railroaded".

195. When questioned about being mislead, it was put to him, was he suggesting Superintendent Gillett mislead him into putting in the report. The Applicant indicated that may be he was mislead.

196. I would submit that the Applicant would not directly answer this question, and when it was suggested to him that no one mislead him he said: "Well, that may be the case, that's just the way I feel" (See: Transcript 29th June, 2004 pg. 71.8).

The Respondent conceded disability. It would come within S.4(c), (d), (g) of the Act.

197. The Applicant alleges inter alia, that the conduct of the Respondent in placing restrictions on the Applicant's work between January, 2001 - March, 2003 constituted direct discrimination for the purposes of Sections 5 & 15(2)(a)(b) and (d) of the DDA (Submission parag. 15)

198. In Purvis v. New South Wales (Department of Education & Training) [2003] HCA 62; 202 ALR 133, Gleeson CJ stated: "The Act is concerned with discrimination of a kind that the legislature regards as unjust and makes unlawful. The question is whether the Act treats certain action taken in respect of conduct that affects, not only the person said to be the victim of the discrimination, but other persons whom the alleged discriminator is obliged by law to protect as unjust and unlawful discrimination. The First Respondent owed a duty of care towards its pupil and its staff. See_:_ New South Wales v. Lepore [2003] HCA 4; (2003) 195 ALR 412. That is part of the legal background to the operation of the provisions of the Act dealing with education. In its application to educational authorities, the Act enters an area of relationship governed by legal obligations designed to protect the young and vulnerable. In the development of common law principle, it is appropriate, and some times necessary, for the Court to take account of the need for coherence in the law. For example, in Sullivan v. Moody (2001) 207 CLR 562, 581 the Court asked how a duty of the kind there under consideration could be related rationally to the functions, powers and responsibilities of the persons and authorities said to owe that duty. In construing legislation, it may be appropriate to ask a similar question. The obligations which arise from the act have to be related to the functions, powers and responsibility of the First Respondent. Furthermore, the conduct of the First Respondent can only evaluated fairly in the light of an understanding of those functions, powers and responsibility."(136) (See also: Purvis v. State of New South Wales [2002] FCAFC106 [25]).

199. It is submitted, in this case the Court must have regard to the functions, powers and responsibilities of the Respondent. It has an obligation to ensure that its employees, such as the Applicant work in a safe environment, fellow officers also work in a safe environment and has a general duty to the public at large.

It is submitted that the Respondent in this case showed concern and sensitivity in dealing with the concerns of the Applicant in respect to his perception as it related to his employment.

It also recognised its legal responsibility to other staff who are reliant on a Police Officer who is able to act confidently in situations of severe sudden physical exertion, domestic and other violent situations. The level of concern exhibited by the Applicant in respect to his perception, exposed a real risk if placed in that situation. The facts elucidate the concerns the Respondent had for the Applicant in an attempt to ascertain the extent of his perception as it related to his work environment. As His Honour, Gleeson C.J. stated:

"And in the practical application of the Act and the evaluation of the conduct of the First Respondent those responsibilities should be kept in mind" (See: Purvis pg. 136).

200. In Their joint judgment Gummow, Hayne, Hayden JJ. stated:

"In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled.

The circumstances referred to in Section 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator"...All of the circumstances of the impinged conduct can be identified and that is what Section 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.(185)

In the present case, the circumstances in which [the student] was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils." The Inquiry requires a comparison that must be made between the treatment or proposed treatment of the disabled person with the actual treatment or hypothetical treatment "in circumstances that are the same or not materially different" (See also: Gleeson CJ. pg. 137[11]

201. The requirement that the comparison between treatment of an aggrieved person and the treatment of a person with out the disability in circumstances that are the same or not materially different requires an examination of the treatment that would be accorded to a Police Officer without the Applicant's disability, on the hypothesis that such a Police Officer had behaved in the same way as the Applicant.

202. In respect to the comparator, it is submitted that the onus is on the Applicant to tease out or to define the comparator. Further, it is submitted that the onus is on the Applicant to put to the Respondent's witnessed appropriate response(s) by the Respondent in respect to the treatment of a person without the disability but in like circumstances.

I submit the Applicant did not elucidate that situation.

"The proper comparator is a person who does not have sickle cell trait, but would have a risk of injury equivalent to that of the Applicant (the "comparator").

203. The Applicant has not suggested that "the comparator" is a real person.

It is submitted that this is a case where the comparator maybe a hypothetical Police Officer. It is submitted that if the hypothetical Police Officer would have been treated in the same way as the Applicant, it is submitted that there is no discrimination on behalf of the Respondent.

It is submitted that the hypothetical Police Officer, is a Police Officer without the sickle cell trait condition, but has a real perception/apprehension for his own personal safety in the carrying out of his Police duties, because he would be exposed to violent situation(s). There could also be a further variation(s) in defining the comparator. The basis for such a perception could be real or unreal. There are numerous cause(s) (without sickle cell trait) for a person to have such a perception, which is submitted is not required for the inquiry. These circumstances should not be excluded just because they are identified as being connected to the disability (See: Purvis pg 185 [223]).

204. In the inquiry, the circumstances are all of the objective features surrounding the treatment of the disabled person. (All those circumstances are referred in the factual analysis.)

205. The circumstances that gave rise to the Respondent's treatment by placing him on restricted duties were as a result of his anxiety, concern for his own personal welfare resulting from the death of his brother, who had the same condition.

The Coroner's report found that there was nexus between the assault, his medical condition, and death.

The Applicant's uncle, Garry Trindall, also conveyed his real concerns for the Applicant to the Respondent.

The Applicant conveyed his anxiety, concern to his fellow and superior officers in respect to his condition.

Those concerns were relayed to his treating G.P.. On advice from a Specialist, Dr Ling placed the Applicant on restricted duties. It is submitted those concern(s) continued through 2001 and 2002.

It is submitted that the true comparison is to ask what would happen to a Police Officer without the disability, "in like circumstances that were the same or were not materially different".

206. It is submitted that the Respondent would have treated a person without the Applicant's disability in the same way. It is submitted that the hypothetical officer would have been placed on restricted duties after advising of his perception and concern. To understand the situation, it is submitted that the Respondent would seek to have the hypothetical Police officer clarify those concerns, so that the Respondent could understand the situation that it was dealing with. It is understandable those concerns would be reduced to writing, setting out the perception and its affect on the Police Officer.

207. It is submitted that, "in circumstances that are the same or not materially different", the Respondent would require the hypothetical officer to ascertain his medical status, as to whether or not the hypothetical Police Officer could carry-out operational duties.

In that regard, requesting the hypothetical Police Officer to seek medical advise is an appropriate response to such a perception. It is submitted if the comparator provided medical advice it would be appropriate to adhere to that advice.

208. It is submitted that the complaint(s) pursuant to Section 15(2)(a) are not made out.

209. It is submitted in like circumstances, the comparator would be requested to set-out his concerns, so as to determine an appropriate response. That is the Report.

Further, it is submitted in like circumstances, the comparator would be placed on discretionary restricted duties to avoid physical or confrontational situations. That is, the Applicant was informed from about 25th January, 2001 that he would be placed on restricted duties.

It is submitted in like circumstances, the comparator on the seeking medical opinion, which advises initial medical opinion, that is, which advisor's restrictions they would be adhere to. That is, the restrictions placed by the Police Medical Officer, Dr Norris on the 8th May, 2001.

Further, it is submitted in like circumstances, the comparator, after providing medical advice, that he is to be placed on restricted duties. It would be appropriate to follow such advise. That is, the further restrictions placed on the Applicant by the Police Medical Officer, in his letter dated 8th May, 2001 on the basis of Dr Ling's medical certificate that was prepared in consultation with Dr Presgrave.

210. Further, in the Applicant's submissions, it seeks to dis-credit the relationship between the Applicant and his superiors, particularly Superintendent Gillett, Inspector Cairncross and Superintendent Stewart in paragraph 37 of the Applicant's submissions. Paragraph 37 has earlier been referred to in paragraph 100 of these submissions.

211. Further, in paragraph 38 the Applicant seeks to suggest "...the Respondent sought to exploit there circumstances of the Applicant's medical condition to deny him opportunities in his employment and ultimately seeking to have him removed from the Police Service".

212. In those two paragraphs (parags. 37 & 38) one of the basis for those submissions is the Olympic issue. Firstly, dealing with the Olympic issue, Superintendent Gillett advised the Court that in his opinion, the actions of the Applicant could have resulted in departmental action, which could have serious consequences on the Applicant's contract of employment. Superintendent Gillett advised the outcome of the Olympic issue was a mediation, which resulted in an apology from the Applicant. There was no detrimental action taken against the Applicant arising out of that issue. It is submitted that the Respondent was sensitive to the Applicant's position in the Olympics and a more than reasonable outcome was achieved. To suggest otherwise, as is set out in the Applicant's paragraphs 37 & 38. is outrageous and without merit.

213. It is also submitted that the basis of a so called "conspiracy" should have been squarely put to Superintendent Gillett, Inspector Cairncross and Superintendent Stewart. Such a proposition(s) was never put, as is elucidated in paragraph 37. It is submitted that such allegation should be rejected by the Court.

214. Further, in respect to paragraph 38 of the Applicant's submission, it further suggests a conspiracy "for the Respondent to exploit the circumstances of the Applicant's medical condition to deny him opportunities in employment and not ultimately seek to have him removed from the Police Service. Further, in paragraph 38(c), it is submitted that there is also evidence of collusion between witnesses for the Respondent. It is submitted that such a conspiracy theory should have been squarely put to the witnesses. I submit that has not occurred in this case. It is submitted, that there is absolutely no basis for the Respondent seeking to have the Applicant removed from the Police Service, as a result of the Applicant's medical condition, as suggested in paragraph 38.

Further, it is submitted the above submission(s) should be rejected.

215. It is submitted that the Respondent has not discriminated against the Applicant in terms or conditions of his employment (Section 15 (2)(a)). It is submitted that in the circumstances, the Applicant's treatment was "not less favourable" than the hypothetical Police Officer treatment.

216. Further, it is submitted these submission(s) dealing with the Applicant's submissions in parags. 37 & 38, and the earlier submission dealing with the Applicant's credit (parags. 171 to 196) apply to the three issues of Direct, Indirect and Racial Discrimination.

217. In respect to the allegation of discrimination pursuant to Section 15(2)(b) by denying the employee access or limiting the employees access to promotion, transfer or training or any other benefits associated with his employment. It is submitted that is not made out by the Applicant.

218. The Respondent relies on the earlier section, Promotion in paragraphs 155 to 170.

219. The Respondent submits on the evidence from Superintendent Gillett and Sergeant Lang that there was no impediment or limitation placed on the Applicant in respect to his promotion etc. within the Police Service of New South Wales. In that regard, you will recall that these avenues were discussed by Dr Norris with the Applicant. Superintendent Gillett, also explored other areas within the Police Service, along with Sergeant Williams, the Rehabilitation Officer.

220. In respect to the comparator, it is submitted that comparator would have been treated in a similar way to that of the Applicant. It is submitted that the Applicant has not made out a case in respect to this aspect of discrimination on the evidence. Further, it is submitted that it can not be argued that the Applicant received less favourable treatment than with the hypothetical comparator.

In respect to Section 15(2)(c) it is submitted on the evidence that discrimination has not made out.

221. In the Applicant's submissions, it suggests "the actions of the Respondent in taking steps to have the Applicant assessed "for medical discharge" from the Police Service constituted conduct which subjected the Applicant to a determent in relation to his employment for the purposes of Section 15(2)(d) (See: Paragraph 12(d)).

222. It is submitted on the evidence before the Court, it is not open to find that the Respondent sought to take steps to have the Applicant assessed for medical discharge. The evidence was only a medical referral to determine his fitness for operational duties, noting that the Applicant was requesting that the restrictions be lifted on him. There was no suggestion from Superintendent Stewart or Dr Norris that they were seeking medical discharge of the Applicant.

What occurred was that the Workers Compensation & Review Branch misunderstood the basis of the referral. It was a mistake, but the mistake was not that of the Respondents.

223. It is further submitted that a comparator in like circumstances who conveyed his continued concerns, anxiety about his perception(s), the possibility is that the comparator may have been considered for medical discharge.

However, it is submitted, in the actual circumstances of this case, the Respondent did not seek medical dis-charge the Applicant. It is submitted that the Applicant has not received less favourable treatment.

224. In conclusion, it is submitted that the comparator would be a hypothetical police officer. It is submitted the comparison must be made with the treatment that would be given to a police officer without the disability in circumstances that were the same or were not materially different. In that regard, it is submitted that the Police Officer, without the disability would be a person who has a perception that his duties would expose him to violent situations which would be detrimental to his well being. In that regard, the Respondent has been pro-active to the complaint of concern. It has embarked upon a course to determine an understanding of the complaint. A referral to the Police Medical Officer in respect to understanding the complaint, a referral to the persons treating general practitioner, who then takes specialist advice. In considering the circumstances that were the same or not materially indifferent, it is submitted that there could not be a finding of fact that there was discrimination against the Applicant. It is submitted on all the allegation(s) of direct discrimination the Applicant was not treated less favourably than the comparator.

225. The Respondent submits that the onus is on the Applicant to identify the pool of persons with whom the aggrieved person can be compared.

The Respondent submits that no attempt was made properly to identify "an appropriate base group" with which to compare the individual complaining discrimination, and decide whether a substantial proportion of those individuals in the base group are able to comply with the relevant requirement or condition (See: Australian Iron & Steel Pty Limited v. Banovic [1989] HCA 56; (1987) 168 CLR 165, 178, 179; Clarke v. Catholic Education Office [2003] FCA 1085; (2003) 202 ALR 340, 352.

It is submitted that the Applicant fails on this requirement.

226. However, in the alternative, if the Court is of the opinion and can identify a "base group or pool" the Respondent makes the following points.

The Applicant relies on paragraphs 42-44 with earlier reference to paragraphs 26-29.

In respect to paragraph 43 the Applicant states "sickle cell trait is a relatively rare condition in Australia and the Applicant encountered difficulties in finding experts who had any detailed knowledge or experience of the condition" (See: Trindall parag. 20).

To assert the Applicant encountered difficulties, in finding experts who had detailed knowledge or experience... is an exaggeration. He was encouraged to seek further medical opinion. However, the Applicant chose to seek further advice over the internet. The Respondent is not in a position to forcefully direct the Applicant to consult another G.P. and seek referral to another Specialist for a non-work related condition, seeking the removal of the work restrictions. All experts, in this case (the doctors who prepared the Autopsy Report, Dr Presgrave and Dr Lindeman, Associate Professor Hertzberg who prepared a report, for the Respondent's Court and Legal Services) provided specialist opinion on the Applicant's condition.

The Respondent submits that a Hematologist in New South Wales would be able to provide a Specialist opinion on the matter. However, their opinion(s) may differ, as is the position in this case.

227. The Applicant asserts in paragraph 42 that, "the Respondent required the Applicant to comply with "a requirement or condition" namely, that the Applicant, as a serving Police Officer with six (6) years service produce medical evidence to demonstrate that he was fit and able to perform a full range of policing duties. The Applicant was directed to submit a report on his condition by Superintendent Gillett in late January...".

It is submitted that demonstrates a misunderstanding of the facts in this case. The Applicant was required to provide a report on his condition.

It is submitted that the Applicant has misconstrued the words "a requirement or condition". As a result of his real apprehension concerning his working environment he was requested to see his G.P. about the current restrictions.

228. It is submitted that the requirement or condition should be correctly defined as a requirement that a Police Officer who has a real perception which interferes with his daily working activities should provide a medical certificate to his employer. It is a requirement all employers require, when the employee apprehends that he/she is unable to undertake work duties because of a real perception that their personal safety is at stake if exposed to parts of their work environment.

The Applicant's perception was an unusual condition, where the Applicant expressed high real concerns for his own situation in the carrying out of his duties. Superintendent Gillett requested that a report be obtained from the Applicant, so that he (the Respondent) could have an appreciation of his perception and its consequences, so as to allow an appropriate response to his immediate concerns.

229. The train of events that occurred subsequently were a reasonable response to the concerns of the Applicant. The Police Medical Officer, Dr Norris, was involved, who advised, as the condition was non-work related for the Applicant to discuss the situation with his local general practitioner as soon as possible, and to arrange referral. In summary, the Applicant consulted his general practitioner, who in consultation with Specialist Hematologist, placed restrictions on the Applicant's work duties.

The Respondent continually monitored the Applicant's condition through its management, in particular, Superintendent Stewart. His medical condition was monitored by the Police Medical Officer, in consultation with the Applicant and other rehabilitation officers, but also on advice from his medical advisor(s). He was also assisted by the Respondent's Rehabilitation Officer, Ms Williams, who was in consultation with his treating practitioner, Dr Ling.

The Respondent was responding to a medical certificate that was supplied by his treating doctors in respect to a non-work related condition. The Respondent has a primary duty of care, not only to the Applicant, but also to fellow officers and the public generally to not place the Applicant in an unsafe working environment. The Respondent always responded to the Applicant's concerns in relation to the restrictions that were placed on him. Those restrictions were at the behest of his medical advisors.

230. The protocol of the Respondent is appropriate, (as with other government instrumentalities and employers within the commonwealth) that they respond to medical certification by treating doctors in respect to restrictions placed on employees, as a result of a medical condition. That is what occurred in this situation, as Dr Norris continually pointed out, he was not in a position to unilaterally act as the Respondent's medical officer to remove those restrictions and return him to duties, whilst the Applicant was under a continuing medical certificate from his medical advisor(s), informing the Respondent that he had to work pursuant to those restrictions.

231. In respect to the removal of those restrictions, that could not be made unilaterally by the Respondent. Again, Dr Hertzberg provided a report on behalf of the Respondent's Legal Department in respect to the Applicant's application to HREOC. Dr Ling did not initially respond to Professor Hertzberg's report in immediately lifting the work restrictions. As a medical practitioner, he consulted with Dr Hertzberg in respect to the condition and the restrictions. It was only after professional consideration of that advice, that the restrictions were subsequently removed, which allowed the Applicant to return to work.

232. It should not be lost that Professor Hertzberg provided a medico-legal report in response to the Applicant's application to HREOC. It should not be forgotten that the Autopsy report, provided by medical specialist has not been challenged. Further, the medical certificate from Dr Ling stated it was based on specialist advice. Dr S Presgrave and Dr Lindeman have not been challenged by the Applicant regarding the Applicant's condition and restriction(s) on his duties as a serving Police Officer in New South Wales.

233. As [the Court] would be well aware in medico-legal cases, other Hematologists may well be of the opinion that the restrictions, as set out in the medical certificate of Dr Ling should continue to apply. Other may hold an alternative opinion.

234. It is submitted that there is no basis for the Court to find that a substantially higher proportion of persons without the condition could comply with the requirement.

Considering all the circumstances of this case, it is submitted that the requirement and/or condition is reasonable, having regard to the circumstances of the case.

It is submitted that the allegation(s) of indirect discrimination have not been made out (See: Minns v. State of New South Wales [2002] FMCA 60 [243-266]).

235. In the alternative accepting the proposition in paragraph 42 the Respondent required the Applicant to produce medical evidence to demonstrate that he was fit and able to perform the full range of policing duties.

In paragraph 43 the Applicant submits, "that it is plain that the Applicant was unable to comply with the requirement to the satisfaction of the Respondent until the report of Professor Hertzberg was obtained. ...Sickle cell trait is a relatively rare condition in Australia and the Applicant encountered difficulties in finding experts who had detailed knowledge or experience of the condition". The Respondent was not in a position to act uni-laterally return the Applicant to his operational duties. The Applicant was encouraged by Superintendent Stewart to engage further advice from other G.Ps and/or Specialist Hematologist.

236. It cannot be submitted as the Applicant submits (See: parag. 43) "he encountered difficulties in finding experts who had detailed knowledge or experience of the condition". He was aware the restrictions could be removed by a doctor. The Applicant could not explain why he did not go to other doctor(s) to seek the removal of the restriction(s). (See: Transcript 30 June, 2004 pg. 96-100).

The Applicant simply did not seek further medical advice from a G.P. or Specialist. It can not be said that there is any basis for submitting that "he encountered difficulties".

237. The Respondent through its legal services was able to refer the Applicant to Associate Professor Hertzberg who provided an opinion, though if he had the condition he could return to work. It is also submitted that the Applicant could have consulted other doctor(s), and sought referral to another Hematologist(s). It is submitted that there is no basis for the Court to find that a substantially higher proportion of persons without sickle cell trait could comply with the requirement.

The Respondent also reiterates that "the requirement was reasonable" in the circumstances of the Applicant's case.

238. The Respondent refers to the Applicant's points of claim in respect to racial discrimination and there submissions on this issue (See: parag. 45-50).

239. The Respondent submits that this issue was not forcefully pursued with an virgour against the Respondent in these proceedings.

240. In respect to sickle cell trait and sickle cell disease, Professor Hertzberg indicated that it related to persons with racial backgrounds who are African Americans, West Indians, those from the Middle East and Africa. Further, in cross-examination in respect to an article that he had read on the subject to update himself, he also conceded that it also included other nationalities, such as Greeks, Italians, Latin Americans, Indians and Caucasian individuals (See: Transcript 28th June, 2004 pg. 23, 27).

I would submit that the racial mix is so diverse that it could not be held that persons with sickle cell trait could be found to be a race within the meaning of the Act (See: King-Ansell v. Police (1979) 2 NZLR 531; Williams v Tandanya Cultural Centre [2001] FMCA 46; (2001) 163 FLR 203).

241. Further, I would submit that persons with sickle cell trait would not come within the definition of "ethnic origin" within the meaning of Section 9(1) (See: Mandla v. Dowle [1982] UKHL 7; (1983) 2 AC 548).

242. However, in the alternative, if [the Court] is of the opinion that this case comes within the definition of race and/or ethnic origin within the meaning of Section 9, I would submit on the matters that have previously been submitted in this matter, racial discrimination could not be made out.

243. In the alternative, the Applicant relies on Section 15(1)(b) of the Racial Discrimination Act.

The earlier submission with respect to race and ethnic origin, etc. are relied on.

244. It is submitted that there was no evidence before the Court that on the reasons of race, ethnic origin etc. that the Respondent refused or fails to afford the Applicant the same terms of employment, conditions at work and opportunities for promotion as other employees in the same circumstance.

245. Similarly, from the matters that have gone forward, there is no basis the issue of race, ethnic origin etc. that the Respondent failed to afford the Applicant the same terms and conditions of employment and opportunities for promotion.

It is submitted that there is no evidence before the Court that the Respondent acted in any way, by reason of race, national or ethnic origin etc. in respect to any activity it carried out in this matter, against the Applicant.

246. The Respondent submits that the Applicant has not made out a case in respect to direct and indirect and racial discrimination in this matter. As such, the Application should be dismissed.

247. However, if in the alternative, [the Court] is of the opinion that discrimination has been made-out, The Respondent makes the following submissions:

On considering all the facts in this case, and, the issue(s) dealing with the credit of the Applicant it is submitted that an appropriate remedy is an Apology as the measure of damage (See: Forbes v. Commonwealth of Australia [2003] FMCA 140).

248. In the alternative the Respondent admits the following:-

The Respondent agrees with the general principles in respect to the assessment of damages, as set out in Applicant's paragraphs 50-55.

249. However, the Respondent disputes that the Applicant has suffered a very significant injury to his feelings, emotional and psychological distress, hurt and humiliation, as a result of the conduct of the Respondent constituting unlawful discrimination.

250. The Respondent submits on the facts a very significant injury has not been made out.

The Respondent again submits the Applicant's credit should also be considered in this aspect of the claim.

251. The Respondent submits that an appropriate range in respect to damages would be in the order of $0-$5,000.00. The Applicant remained in his employment and was able to carry out his duties as required. The Applicant had opportunities of other career paths with the Respondent. He was not precluded from overtime or the opportunity of promotion. The Applicant was not faced with the dire situation that as a result of his condition, his employment was terminated by the Respondent (See: Randell v. Consolidated Bearing Company (SA) Pty Ltd [2002] FMCA 44, 55.

252. The Respondent submits that this claim is full of conjecture.

253. The Applicant first claim(s) is for loss of overtime and shift penalties is set-out in paragraphs 58-64.

The provision of over time and shift allowance is dependent on variable factors which vary from one time period to another. The demand for over-time, or a change in policy on over-time.

254. It is submitted that it is inappropriate to compare a period where it is alleged the Applicant was not receiving these benefits to an earlier period when the Applicant was for those stated reasons.

The appropriate way to determine such a matter would be to have the wage records for two (2) comparable Constables from the same police station and/or region. A comparable can then be determined by taking an average of at least those two (2) Constables for the period, to assess whether or not there has been a comparable loss of overtime and shift allowances. There are also other contingencies that can affect this issue.

It is submitted that the Applicant has failed to make out any case in that regard.

255. Secondly, the Applicant seeks damages for loss of opportunity to become a Senior Constable. It is submitted that the Applicant prior to any concern about his condition had failed the Senior Constable Course. There was no impediment on him in attempting to do this course whilst he was on restricted duties.

It is submitted that there is no medical evidence that supports the proposition that he was precluded from attempting the course to proceed to the classification of Senior Constable.

In regards to the process to become a Senior Constable, both Superintendent Stewart and Sergeant Lang gave evidence on this point. It is submitted that this claim can not be made out. It is submitted there was no impediment after 2001 for the Constable to complete the course.

256. Finally, the Applicant seeks an Order that the Respondent give the Applicant the rank of Senior Constable. That rank can only be obtained by completing the relevant course. It is a requirement that all Constables have to meet in regard to their progression through the police force. The Respondent submits that it would totally unreasonable for the Court to consider giving the Applicant the rank of Senior Constable, when he has not met the requirements of the course for that rank. This claim should be dismissed.

133. Mr Gibian prepared the following submissions in reply, which were filed on 1 December 2004:

1. These submissions are made in reply to the unfiled written submissions received from the respondent on 15 November 2004 (hereinafter referred to as "RS"). The applicant, of course, relies upon its primary submissions filed in the court on 19 October 2004 (hereinafter referred to as "AS") and does not repeat what is said in those submissions.

2. A substantial part of the respondent's submissions in these proceedings are devoted with a discursive recitation of the respondent's view of the evidence. There is little attempt to link much of this discussion with matters which are actually at issue in the proceedings. It is neither possible nor necessary to respond to each assertion made in relation to the evidence. The applicant will endeavour to respond to the respondent's submissions by focussing on matters which appear to be relevant to the proceedings.

3. The respondent submits that the applicant was concerned about his work as a police officer as a result of his sickle cell trait and the death of his brother: see, for example, RS par 9-19, 192 and 199-203. The respondent appears to infer from this that the applicant did not wish to continue police work. The applicant was undoubtedly and understandably deeply saddened by the death of his brother and concerned about his sickle cell condition. However, the contention that, as a result, the applicant did not wish to continue his police work or was ambivalent about police work is plainly not sustainable on the evidence. Such a proposition is, furthermore, contradicted by evidence given by the respondent's own witnesses. The relevant evidence includes the following:

a) The applicant gave evidence that immediately following his brother's death he took a period of time off work on compassionate grounds, but sought to return to work in late November or early December 2000 because he wanted to get on with his life: Transcript 30/6/04 p68-69. It was the Police Service which prevented him from returning to work at that time and it was not until January 2001 that the applicant was permitted to return to work. Furthermore, the applicant gave consistent evidence that he resented the restrictions which had been placed on his work and that his paramount desire was to do operational policing work: BT par 29 and 34-38 and BT2 par 17.

b) When the applicant was first informed that restrictions were to be placed on his work by Superintendent Gillett in late January 2001, he said words to the effect of: "They are a bit harsh and maybe should put something in writing": BT2 par 33. Superintendent Stewart gave evidence that the applicant consistently and repeatedly asserted his desire to return to operational policing work and his resentment of the restrictions which were placed on his employment. For example, Superintendent Stewart agreed that the applicant repeatedly said words to the effect of: "I think the restrictions are too severe, unwarranted and over the top": Transcript 8/9/04. It was clear that Superintendent Stewart regarded there as being no doubt as to the attitude of the applicant to policing work.

c) Dr Norris gave evidence that the applicant made it clear to him at his first consultation on 7 May 2001 that he wanted to do operational policing work: Transcript 10/8/04 p34.15-19. At the consultation held on 17 July 2001, the applicant again made clear that he wanted to perform operational duties and was upset about the restrictions: Transcript 10/8/04 p47.3-25. Dr Norris agreed that the applicant consistently indicated to him that he wanted the restrictions removed and to return to operational policing: Transcript 10/8/04 p47.38-48.2. The applicant's attitude was in no sense "dichotomous": cf. RS par 98.

4. The respondent appears to rely significantly upon the evidence of Sergeant Ridley in asserting that the applicant did not want to return to policing work in late 2000 or early 2001 as a result of his sickle cell trait: see, for example, RS par 33-34 and 173-182. It is submitted that the evidence of Sergeant Ridley is difficult to accept in light of the improbable nature of his evidence and the concerns about his credit in light of his past conduct. In any event, Sergeant Ridley's evidence does not support the proposition put forward by the respondent. The relevant evidence includes the following:

a) Sergeant Ridley's account of the conversation he alleges took place between himself and the applicant is difficult to accept. Both the applicant and Sergeant Ridley agreed that they did not have a close relationship: BT2 par 40. Sergeant Ridley had only worked at Narrabri since August 2000. When describing his relationship with the applicant, Sergeant Ridley said "I wouldn't call it a friendship" and gave evidence that he would not have confided in the applicant: Transcript 11/8/04 p73.34-74.13. The applicant similarly gave evidence that Sergeant Ridley was "not a mate" and he had not discussed personal aspects of his life with Sergeant Ridley: Transcript 30/6/04 p68.7-20. In these circumstances, it is highly improbable that the applicant would have spoken to Sergeant Ridley in the terms stated by Sergeant Ridley.

b) The detail of Sergeant Ridley's recollection of conversations occurring in January 2001 appears to be wildly inconsistent. Whilst he claimed to have a good recollection the conversation he alleges took place on 5 January 2001, he could not remember a single word said at the meeting he attended with the applicant and Superintendent Gillett in late January 2001 at which the applicant's sickle cell was discussed: JR par 23 and Transcript 11/8/04 p86.34-87.17. The inconsistency of his recollection seriously undermines the credibility of his evidence.

c) The record Sergeant Ridley claims to have made in his diary is very suspicious. It is decidedly odd that Sergeant Ridley chose the record lengthy details of a conversation where he took no action in relation to the conversation. The diary records no other event occurring on that day which Sergeant Ridley felt the need to record: JR Annexure A. If the conversation was significant as he claims, Sergeant Ridley was unable to explain why he did not make a record in his official police note book: Transcript 11/8/04 p82.6-30.

d) Sergeant Ridley also sought to expand upon the matters recorded in his diary. For example, Sergeant Ridley gave evidence that the applicant said he was concerned that if he got involved in an arrest ... it could start a sickle cell attack: JR par 13. This is not a matter which Sergeant Ridley recorded in his diary. The Court will not accept the evidence of Sergeant Ridley in these circumstances, particularly as Sergeant Ridley himself nominated the fact he made notes as the reason he was able to recall the conversation: Transcript 11/8/04 p87.8-23.

e) In any event, Sergeant Ridley himself gave evidence that the applicant contacted him in late November 2000 (that is, soon after the applicant's brother's death) wanting to get back to work and "get on with the job": Transcript 11/8/04 p74.23-32. Even if Sergeant's Ridley's evidence of the conversation of 5 January 2001 is accepted, it is clear that the applicant attended the station in order to make arrangements to return to work and told Sergeant Ridley that he was "keen to return to work as soon as possible": Transcript 11/8/04 p80.34-40 and JR Annexure A. The evidence of Sergeant Ridley does not support the submission made by the respondent.

5. At paragraph 26-27, the respondent submits that an inference of the type discussed in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 should be drawn against the applicant in relation to the evidence of Garry Trindall. Such a proposition cannot be supported. There is no basis upon which it could be suggested that the applicant had an onus to call Garry Trindall. Indeed, the usual inference would be that an employee of the Police Service (such as Garry Trindall) would be called by the respondent to give evidence concerning his work. It is plain that the evidence of Garry Trindall was available to the respondent and it could (and should) have called him if it wished to rely upon his evidence: see, for example, Earle v Castlemaine District Community Hospital [1974] VicRp 86; [1974] VR 722 at 734.

6. In any event, an inference of the type discussed in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 only operates in relation to evidence the witness could have given: see, for example, Payne v Parker [1976] 1 NSWLR 191 at 202. In the case of Garry Trindall that evidence would have been limited to any conversations he had with Inspector Cairncross between October and December 2000. The submission advanced that Garry Trindall's evidence would not have been supportive of the applicant in his allegations of discrimination against his employer (RS par 27) misunderstands the operation of the principle in Jones v Dunkel and cannot be accepted.

7. The respondent makes a number of submissions in relation to the evidence of Dr Ling: see RS par 69-85. It is submitted that, in discussing the evidence of Dr Ling, the respondent again misconstrues the evidence. For example, the respondent erroneously submits that Dr Ling appreciated that certain situations, including physical exertion and violent situations were part and parcel of police work: RS par 71. Whilst Dr Ling conceded that exertion and violent situations may arise in the course of the work of a policeman, it is plain from his evidence that he did not intend the medical certificate he issued on 9 April 2001 to prevent the applicant from carrying the bulk of his policing duties: ML2 par 5 and 7. Dr Ling clearly did not interpret the certificate as preventing the applicant from performing police work, it merely advised that certain precipitants be avoided.

8. It appears that the respondent criticises Dr Ling for failing to discuss the applicant's condition and work restrictions with the Police Service, particularly Dr Norris: RS par 79. This is a surprising submission to say the least. The criticism is much more aptly directed at the respondent. It is the Police Service, particularly through Dr Norris, which imposed blanket restrictions on the applicant's work without taking any action to clarify the extent of any restrictions which Dr Ling required on the applicant's work. The respondent failed to take any action to clarify the medical opinion of Dr Ling despite the fact that Dr Norris himself did not regard any restrictions as necessary and there were good reasons to doubt the necessity for any restrictions: see AS par 30, 32 and 34.

9. This failure on the part of the respondent is particularly telling in light of the evidence given by Dr Ling as to the standard practice he adopts in dealing with employers. Dr Ling gave evidence that when a medical certificate is issued an employer may contact him to obtain more details and information about the nature of the duties which are suitable: Transcript 30/6/04 p34.25-35. Dr Ling further gave evidence that he would have welcomed discussing the matter with Dr Norris, but such an approach was never forthcoming from Dr Norris or any other representative of the respondent: ML2 par 12. Furthermore, Dr Ling gave clear evidence (again on which he was not directly challenged by the respondent) that he regarded is as the responsibility of the employer to apply specific restrictions on the applicant's work: ML2 par 12.

10. In relation to the medical certificate dated 9 April 2001, it is clear that Dr Ling now regards the advice as having been "inappropriate": Transcript 30/6/04 p45.30-40. The respondent submits that it is inappropriate to retrospectively question a medical certificate and appears to say that it is not for the employer to question of medical certificate: see, for example, RS par 86, 91 and 129. These submissions are entirely misplaced and do not address the matters actually at issue in the proceedings. It is plain that the restrictions were imposed by the respondent by decision of Dr Norris contained in the letter of 8 May 2001: BT Annexure BT7. The medical certificate issued by Dr Ling did not state that the applicant was unfit for work and at no time did Dr Ling realise or intend that the applicant would be prevented from performing policing work: ML2 par 5, 7 and 11. It was the actions and independent decision of Dr Norris which resulted in the applicant's work being restricted.

11. The restrictions were imposed upon the applicant in circumstances in which the respondent itself did not regard the restrictions as being necessary and there was no external requirement upon them to restrict the applicant's work. Dr Norris gave evidence that he "was not in personal agreement with the restrictions which I felt to be excessively cautious given that Constable Trindall had already served for 6 years as an operational police officer": TN par 15 and Transcript 10/8/04 p18.23-37. The reports completed by Dr Presgrave and Dr Lindeman did not require the restrictions to be placed on the applicant's work. After receiving the report of Dr Presgrave, Dr Norris formed the view that the applicant could return to operational duties and, further, that the opinion of Dr Lindeman was "consistent" with that of Dr Presgrave: TN par 14 and 21 and Transcript 10/8/04 p25-28-26.7. Despite these circumstances, Dr Norris imposed standard restrictions from all operational policing without seeking any clarification from Dr Ling, Dr Presgrave or Dr Lindeman.

12. The respondent makes certain submissions concerning the applicant's perception that there was a "conspiracy" involving his superiors: RS par 99-101 and 210-214. The substance of the submission appears to be that this matter was not put to the respondent's witnesses. In this regard, the applicant makes two points. Firstly, the motivation for the employer's conduct is not relevant in determining whether discrimination has taken place: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359. As such, it is not necessary to establish that the respondent intended to discriminate against the applicant. Secondly, for the reasons given in paragraphs 37 and 38 of the applicant's primary submissions, it is submitted that it is open to the Court to find that the representatives of the respondent sought to exploit the circumstances of the applicant's condition to deny him opportunities in his employment. This is a matter which was put to the respondent's witnesses: see, for example, Transcript 10/8/04 p93.5-20 and 11/8/04 p47.35-49.5.

13. The respondent refers to the advice of Dr Konetey-Ahulu provided by the applicant to Dr Norris and Superintendent Stewart in around August 2001: RS par 103-105. The respondent's submissions fail to understand the significance of the advice of Dr Konetey. The advice of Dr Konetey that there should be no restrictions upon the applicant's work accorded with Dr Norris' medical opinion and supported the applicant's repeated assertions that restrictions were severe and unnecessary: Transcript 10/8/04 p48.37. As of August 2001, there were in place restrictions the respondent's medical officer did not regard as necessary and were not supported by any expert evidence. Yet upon receipt of further confirmatory advice from an international expert, neither Superintendent Stewart nor Dr Norris did anything: see, for example, Transcript 10/8/04 p49.3-24.

14. The respondent makes certain submissions concerning the apparent attempt to have the applicant medically discharged: RS par 132-135. The applicant submits that it is plain that the respondent, particularly through Dr Norris and Superintendent Stewart, adopted a course of conduct which would have resulted in the applicant being removed from the Police Service. The respondent did so in circumstances in which it did not believe there was any good reason why the applicant could not perform the full array of operational policing duties. The relevant evidence includes the following:

a) The role of Healthquest is to assess whether police officers are fit to continue performing police work. Dr Norris gave evidence that Healthquest become involved when an officer "is not likely to return to normal duties" and it will determine "whether or not the person should continue in the Police Service or not": Transcript 10/8/04 p8.35-9.17. The evidence of Mr Crellin similarly indicates that if Healthquest assesses an officer as incapable of performing his or her duties, consideration is then given to medical discharge: AC par 6.

b) As early as 8 May 2001, the Police Medical Officer, Dr Norris, recorded in his letter to Superintendent Gillett that "there being no long term positions available to him it would be necessary on this basis to submit his case to HealthQuest with a view to his suitability for medical discharge": TN Annexure K and Transcript 10/8/04 p35.30-40. Dr Norris recorded this view in circumstances in which he had recently reviewed the report of Dr Presgrave and formed the view that the applicant could return to operational duties.

c) The applicant's superiors at a local level also foreshadowed early in the process that they would seek to have the applicant medically discharged. In his memorandum of 29 January 2002, Superintendent Stewart states, with reference to the applicant's employment, that "this situation cannot be maintained indefinitely" and that "I propose to shortly engage him (the applicant) in discussions as to his future within this Command and perhaps the Service generally": TN Annexure R. It is noted that Dr Norris understood Superintendent Stewart's memorandum as contemplating medical discharge: Transcript 10/8/04 p55.12-20. Although he disavowed that intention, Superintendent Stewart was clearly aware that consequence of the referral to Healthquest was the applicant's removal from the service.

15. In any event, even if the purpose of referring the applicant to obtain independent advice demonstrates the inadequacy of the respondent's response to the applicant's situation. Inspector Cairncross regarded obtaining an independent assessment as the appropriate way in which to deal with a situation the Police Service had not dealt with before or the existence of conflicting medical information: Transcript 10/8/04 p96.38-97.20. The respondent, through Dr Norris and Superintendent Stewart, were aware that there was no good reason for restrictions being placed on the applicant's work since at least May 2001, yet no action was taken to obtain an independent review.

16. The applicant notes that the respondent makes very limited submissions concerning the issue of the applicant failing to perform duties at the Olympics and those submissions fail to make even a cursory attempt to link the respondent's assertions with any matter actually at issue in the proceedings: RS par 142-154. This is surprising considering detailed evidence and lengthy and extensive cross-examination undertaken by the respondent concerning that issue over repeated objections by the applicant as to the relevance of the material. The only possible relevance of the material is that it provides a background to the actions of the representatives of the respondent, particularly Superintendent Gillett and Stewart, and demonstrates their antipathy towards the applicant.

17. The respondent submits it has not directly discriminated against the applicant. It is noted that it appears that the sole basis of this submission is that it is alleged that the applicant was not treated "less favourably" than the respondent would have treated the relevant comparator. That is, the respondent does not dispute the applicant had a disability. It appears the respondent also does not submit (as indeed it could not in any sensible fashion) that the applicant was not discriminated against "on the ground of" his disability in the sense that he was exposed to detriments in his employment because of his disability.

18. In its submissions, the respondent states that it is required to provide a safe work environment for the applicant and other officers: RS par 119 and 199. This is not disputed by the applicant. Courts and tribunals have on numerous occasions been called upon to consider the interaction of occupational health and safety obligations and disability discrimination provisions in Federal and State legislation. The applicant has discussed a number of the relevant authorities in its primary submissions, particularly at paragraphs 23-25. The respondent has not even endeavoured to discuss the relevant issues. At its highest, it appears that the respondent's submissions go no further than saying that the health and safety obligations of the respondent are part of the circumstances which the Court will consider. That observation does not mean that an employer has a defence in relation to a disability discrimination claim merely because it asserts to have had a concern about health and safety. The respondent's submissions do not assist the Court in this regard.

19. The respondent submits that the applicant has failed to define the relevant comparator for the purposes of section 5(1) of the DDA. It is submitted that the proper comparator is as stated in paragraph 20 of the applicant's submissions, namely, a person who does not have sickle cell trait, but would have a risk of injury equivalent to that of the applicant. The applicant does not disagree that the law is now as it was stated in Purvis v Department of Education [2003] HCA 62; (2003) 78 ALJR 1. The approach to be adopted is to identify the circumstances of the treatment of the person discriminated against and compare that treatment with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different: see, for example, per Gummow, Hayne and Heydon JJ at [224].

20. The primary submission of the respondent appears to be that the proper comparison is with a police officer without sickle cell trait, but who has a real perception/apprehension for his own personal safety in the carrying out of his police duties: RS par 203 and 224. The difficulty with that submission is that the circumstances said to exist for the purposes of the comparison cannot be supported on the evidence. For the reasons which are explained in paragraphs 3 and 4 above, the evidence clearly indicates that the applicant at all times following his brother's death wanted to return to work and undertake the full range of operational policing work.

21. The circumstances in which the applicant was placed on severe work restrictions which are relevant to the comparison required to be made are those set out in detail in the applicant's primary submissions. They include that the applicant was a person who had performed policing work for six years without incident, consistently professed a desire to continue with operational work in circumstances in which the respondent through its medical officer did not believe that there was any need to restrict the applicant's work and the applicant's condition did not dictate that he be prevented from performing his normal policing duties.

22. The Court will not accept that the respondent would prevent another officer, without sickle cell trait, from performing work in circumstances like those presented in the case of the applicant. It is clear from the evidence of Dr Norris that the respondent would not prevent an officer performing work where any risks to his or her health and safety could be appropriately managed in the workplace: see Transcript 25.35-26.20. It is particularly noteworthy that the respondent could have accommodated the applicant performing operational policing work without any unacceptable risk and that this is what the respondent had done at least between January and May 2001: see AS par 26-27. The Court will find that the respondent would have done so in case of the comparator.

23. The applicant has also submitted that he was treated less favourably than the comparator as a result of the conduct of the respondent in requiring the applicant to demonstrate to them that he was fit to perform operational duties: see AS par 33-34. The relevant circumstances in that regard are that the applicant disclosed his condition when he joined the police service, was passed fit to perform the full range of operational policing duties and performed those duties without incident for a period of six years: BT par 4 and 6 and Annexure BT1. Yet, the applicant was subsequently directed to submit a report on his condition and attend medical assessment to demonstrate his fitness for duty: BT par 26-27. It is submitted that the Court can readily find that the respondent would not have treated another officer without the applicant's disability the same way in similar circumstances.

24. Furthermore, the applicant has submitted that he was treated less favourably than the comparator as a result of the conduct of the respondent in seeking to have him removed from the police service. The circumstances in which the respondent adopted a course of conduct which would lead to the removal of the applicant from the police service are set out in paragraph 13 above. It is particularly noted that the respondent adopted this course in circumstances in which it did not believe there was any barrier to the applicant performing police work and there was ample medical evidence that there was no such barrier. It is submitted that the Court can readily find that the respondent would not have treated another office without the applicant's disability the same way in similar circumstances.

25. In relation to the indirect discrimination claim, the respondent appears to submit that the applicant has not identified "an appropriate base group" for the purposes of establishing indirect discrimination: RS par 225. With respect, it is plain from the applicant's primary submissions that the "base group" is other police officers employed by the respondent: AS par 43. This is the appropriate "base group" against which to assess whether a substantially higher proportion of that group are able to comply with the requirement or condition. It is noted that in Clarke v Catholic Education Office [2003] FCA 1085; (2003) 202 ALR 340 at 352, Madgwick J accepted that the relevant "base group" for the purposes of determining whether a deaf student was discriminated against was all other students at the school.

26. The respondent appears to submit that the applicant has misconstrued the words "requirement or condition": RS par 227. It is well established that a generous approach should be adopted in identifying the relevant requirement or condition and the terms should be construed broadly so as to cover any form of qualification or prerequisite: Clarke v Catholic Education Officer [2003] FCA 1085; (2003) 202 ALR 340 at 351 and Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 393. For example, in Waters the relevant requirement or condition was using trams without the assistance of conductors. In Clarke, the relevant requirement or condition was "to participate in and receive classroom instruction without the assistance of an interpreter."

27. The applicant has characterised the requirement or condition as being that the applicant, as a serving police officer, produce medical evidence to demonstrate that he was fit and able to perform the full range of policing duties: AS par 42. It is submitted that this is plainly a "requirement or condition" for the purposes of section 6 of the DDA. Furthermore, it is plain that the applicant was required to comply with that requirement or condition and could not comply. It does not appear to be disputed that the applicant was required to submit a report on his condition and directed to attend his GP and a haematologist in order to obtain a medical certificate: see, for example, BT par 23-24 and 26.

28. The respondent appears to submit, albeit somewhat faintly, that the requirement or condition identified by the applicant was reasonable: RS par 234 and 237. The applicant repeats that the requirement or condition was not reasonable having regard to the circumstances, including that the applicant had disclosed his condition upon joining the police service, had been cleared to perform police duties at that time and subsequently undertook operational policing duties for a period of six years without incident.

29. The submissions of the respondent in relation to the racial discrimination claim appear to rely entirely upon the contention that there could not have been racial discrimination because sickle cell trait affects persons from a number of racial backgrounds: RS par 240. This submission is nonsensical and does not appear to be supported by either of the authorities cited in paragraph 240 of the respondent's submissions.

30. If a distinction, exclusion, restriction or preference is imposed in work in relation to persons with a condition which disproportionately affects persons from a particular racial background or backgrounds, that distinction, exclusion, restriction or preference has the effect of impairing the enjoyment or exercise, on an equal footing, of the right to work by persons from any of those racial backgrounds: see section 9(1) of the RDA. That is all that is required to constitute racial discrimination for the purposes of the RDA and it is what occurred in the circumstances of the present matter.

31. In relation to the submissions made by the respondent concerning remedy (RS par 248-256), the applicant refers to what is said in paragraphs 51 to 65 of the primary submissions. It is noted that the respondent does not now dispute that the applicant was denied access to overtime and shift allowances as a result of the work restrictions. This is unsurprising in light of the wage records produced for the applicant which demonstrate that the applicant did not perform overtime and shifts during the relevant period: Ex A2.

32. The applicant submits that the method of calculation adopted is an appropriate basis for the Court to make an order with respect to economic loss. It is submitted that calculating the average overtime payments and shift penalties for the applicant in the period immediately preceding the work restrictions is a more reliable method of assessing the economic loss than the method suggested by the respondent of comparing with other officers: RS par 254. The respondent has pointed to no reason why the sample period on which the calculations are based is inappropriate.

33. The respondent submits that there was nothing preventing the applicant from progressing to the rank of Senior Constable during the period he was on restricted duties: RS par 159-163 and 255. The respondent entirely ignores the evidence given by the applicant that he was unable to complete the requirements of the Constable Development Program required to achieve the rank of Senior Constable as a result of the stress, pressure and depression caused by being placed on restricted duties: BT par 52 and BT2 par 26. The inability of the applicant to achieve that rank was plain a direct consequence of his treatment by the respondent.

34. Finally, it is submitted that there is no impediment to the Court making an order that the applicant be given the rank of Senior Constable or treated as a Senior Constable: cf. RS par 256. The Court has the power to make an order that the respondent perform any reasonable act or course of conduct to redress any loss or damage suffered: HREOC Act, section 46PO(4)(b). It is noted that the NSW ADT has ordered that a police officer be promoted in a disability discrimination matter: see Coleman v Commission of Police [2001] NSWADT 34. The conditions for promotion to Senior Constable are 4 years service and the completion of requirements set down by the Commission: Police Regulation 2000, cl. 16. It is entirely within the power of the respondent to treat the applicant as a Senior Constable and the Court should so order.

134. The relevant legislation is ss.5, 6 and 15(2) of the DDA and ss.9 and 15(1) of the RDA. Those sections provide as follows:

Section 5 of the DDA:

(1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

(1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates:

(a) in the terms or conditions of employment that the employer affords the employee; or

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or

(d) by subjecting the employee to any other detriment.

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b) the other person does not or cannot comply with the term, condition or requirement; and

(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.

(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

(3) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.

(4) The succeeding provisions of this Part do not limit the generality of this section.

It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:

(a) to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;

(b) to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or

(c) to dismiss a second person from his or her employment;

by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.

135. The evidence of Professor Hertzberg concerning the sickle cell trait and the more serious disease is not disputed and I accept it. Sickle cell disease is an inherited disorder affecting the shape of red blood cells which leaves the sufferer severely ill for much of their lives. It is caused by a recessive allele which is found primarily among persons of black African descent, but may also be present in people of other origins. Those with only one of the alleles are known as carriers of the sickle cell trait. At one stage it was thought that those with the sickle cell trait exposed to low-oxygen environments would develop "sickling" symptoms like those with the disease. Those with the disease carry both of the alleles. Screening black African employees (and potential employees) for the sickle cell trait has been used in the United States and the United Kingdom armed forces and airline industry in relation to pilots and other air crew on safety grounds. The result was that many potential pilots or air crew of African descent were unable to work in their chosen profession. However, evidence now indicates that carriers of the sickle cell trait will not develop the sickle cell disease, regardless of their environment. The practice of screening for this trait has now been stopped in the USA, and is under review in the UK. It has been suggested that the approach to sickle cell trait screening in the past was a combination of inadequate education and racial discrimination.[1]

136. Constable Trindall's claim in this case is based upon the proposition that the NSW Police Service mismanaged the examination of his circumstances as a mere carrier of the trait and imposed upon him unnecessary and discriminatory work restrictions, causing him loss and damage. This is said to involve a combination of direct and indirect disability discrimination and direct racial discrimination. The NSW Police Commissioner does not dispute that the sickle cell trait is a "disability" for the purposes of the DDA. It is also not disputed that Constable Trindall is a person of mixed Aboriginal and black African race. Further, it is not disputed that Constable Trindall is a carrier of the trait. What is disputed is whether the conduct of the NSW Police Service in dealing with the disclosures made by or about Constable Trindall's condition constitutes disability or racial discrimination. If it does, the NSW Police Commissioner also disputes the claim of loss made by Constable Trindall.

137. Mr Gibian submits that by imposing work restrictions upon Constable Trindall between January 2001 and particularly from May 2001, and March 2003 the NSW Police Service breached ss.15(2)(a), (b) or (d) of the DDA. He submits that by that conduct s.5 of the DDA was also breached.

138. The initial restrictions imposed upon Constable Trindall's employment were informal and flexible. Those restrictions were put in place by Mr Gillett as a modified form of restrictions advised by Inspector Cairncross. Mr Gillett had become aware of Constable Trindall's condition at the same time as a dispute arising out of Constable Trindall's refusal to perform duty at the Olympics in Sydney was being resolved. Mr Gillett required Constable Trindal to prepare a report upon his condition which Mr Gillett forwarded to the PMO (Dr Norris) and discussed with him. Pending the receipt of reliable medical opinion suggested by the PMO, Mr Gillett left Constable Trindall on full general duties restricted according to his duty officer's discretion, to avoid physical or confrontational situations.

139. The restrictions imposed in May 2001 by Dr Norris went much further and were formal. Those restrictions were:

(e) not to handle prisoners or intoxicated persons;

(f) not to work alone in the public area of a police station; and

(g) avoid potential precipitants such as dehydration, heat stress, severe sudden exertion, domestic or other violent situations.

140. The work restrictions imposed by Mr Gillett and later by Dr Norris were terms or conditions of employment that the employer affords the employee. I accept Mr Gibian's submission that the expression "terms and conditions of employment" in s.15(2)(a) is not restricted to the matters contained in the contract of employment, but is designed to encompass all demands, requirements, benefits and concessions in the actual employment in which the employee must comply with or can accept: Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at [55].

141. Although asserted by Constable Trindall, the evidence does not point to any breach of s.15(2)(b). There were no formal restrictions placed upon Constable Trindall seeking opportunities for promotion, transfer or training or to other benefits associated with his employment. The evidence ultimately relied upon by Constable Trindall was that his psychological state prevented him from participating successfully in the constable development programme and achieving promotion. There is a dispute on the facts about whether Constable Trindall lost opportunities for overtime and shift allowances. However, I regard this as an issue of damages, not an issue relating to any breach of s.15(2)(b) of the DDA.

142. It is unnecessary to consider whether the imposition of the work restrictions also constituted a "detriment" for the purposes of s.15(2)(d) of the DDA. The imposition of the conditions is wholly covered by the terms of s.15(2)(a) of the DDA. Mr Gibian submits that the actions of the NSW Police Service in assessing Constable Trindall for discharge because of his condition constitute the imposition of a further detriment. However, the assessment by Health Quest was intended by the NSW Police Service to relate to a review of the conditions placed upon Constable Trindall's employment. The respondent's evidence clearly establishes in my view that there was no intention on the part of the NSW Police Service to seek the medical discharge of Constable Trindall. A process was put in place which, in the words of Superintendent Stewart, "went off the rails". That is relevant to an assessment of damages if discrimination in relation to the employment conditions is proved. I do not regard it as a separate matter requiring consideration as the imposition of a detriment for the purposes of the claim of direct disability discrimination.

143. As is noted by Mr Gibian in paragraphs 15 and 16 of his initial written submissions, in order to succeed in his claim of direct disability discrimination, Constable Trindall must establish that:

(a) he was treated less favourably, in the terms and conditions of employment afforded to him, than the employer would treat a person without the disability;

(b) the less favourable treatment must have occurred "because of" or "on the ground of" Constable Trindall's disability in the sense that at least one of the reasons for the imposition of the conditions must have been that disability;

(c) Constable Trindall must have been treated "less favourably" when compared with a comparable person without the disability in the same circumstances or circumstances that are not materially different than those applicable to Constable Trindall.

144. In order to assess Constable Trindall's claims it is necessary to identify a comparator and then to determine whether Constable Trindall has been treated less favourably than that comparator, who may be a hypothetical comparator. Mr Gibian submits that the proper comparator is a person who does not have the sickle cell trait, but would have a risk of injury equivalent to that of the applicant. This would be a hypothetical comparator as no particular person was advanced. Mr Fernan, at paragraph 203 of his written submissions, suggests a different comparator. That is, a hypothetical police officer without the sickle cell trait but with a real perception - apprehension of his own personal safety in carrying out his police duties because he would be exposed to violent situations.

145. There is some force in both submissions and in reality not much between them. Mr Fernan concentrates on Constable Trindall's concern about his own condition whereas Mr Gibian concentrates on a hypothetical comparator without reference to any such concern. There is overwhelming evidence that Constable Trindall was at the relevant time concerned about the possible consequences of his sickle cell trait and expressed that concern to others. In my view, the health concern of Constable Trindall should be reflected in the definition of the comparator. So should the absence of the sickle cell trait and the general state of health of the comparator, including the risk (albeit small) of a similar risk of injury arising. Upon this basis the appropriate hypothetical comparator is:

(a) a New South Wales police officer without the sickle cell trait;

(b) who is generally healthy but who has concerns about his health;

(c) who has a low risk of injury of a similar nature to that of a person with the sickle cell trait and who should take reasonable precautions to avoid that risk of injury.

146. Mr Fernan submits that the NSW Police Service would have treated the hypothetical comparator the same as Constable Trindall was treated in circumstances that are the same or not materially different. Simply put, Mr Fernan submits that the work restrictions imposed upon Constable Trindall came about because Constable Trindall himself raised concerns about his health which reasonably required a medical assessment and the outcome of that medical assessment compelled the imposition of the restrictions. On the other hand, Mr Gibian submits that the work restrictions imposed upon Constable Trindall were manifestly excessive and unnecessary. He submits that the work restrictions were imposed at the instigation of the NSW Police Service itself and were not compelled by the medical opinion or any concern expressed by Constable Trindall. He further submits that there was a connection between the imposition of the work conditions and the disciplinary process which flowed from the refusal by Constable Trindall to perform duty at the Sydney Olympics. Mr Gibian submits that the NSW Police Service took advantage of the disclosures by Constable Trindall or about him concerning his condition because of Constable Trindall's behaviour concerning his refusal to perform duty at the Olympics.

147. A substantial amount of evidence was given about the events concerning Constable Trindall's refusal to perform duty at the Olympics and the disciplinary process which followed, as well as alleged disclosures made by Constable Trindall to his fellow officers about his medical condition. The evidence concerning Constable Trindall's refusal to perform duty at the Olympics and the disciplinary process is relevant by way of background and to provide a complete understanding of the state of mind of the various persons relevant to these proceedings. Constable Trindall did make some disclosures about his sickle cell trait in January 2001 at the time the disciplinary process was resolved. Important disclosures had previously been made by his uncle. Constable Trindall was understandably concerned about his condition following the death of his brother. The evidence concerning precisely what disclosures were made by Constable Trindall, when and to whom, is disputed. Detailed evidence of disclosures made by Constable Trindall was given by Sergeant Ridley (who was promoted to the rank of Inspector following the trial). Regrettably, I do not regard that evidence as reliable for the reasons given by Mr Gibian in paragraph 4 of his written submissions in reply. In addition, I consider that Inspector Ridley's evidence is put into doubt by him discussing his evidence with Mr Gillett, and then denying under oath that he did so. Mr Gillett freely admitted the discussion and I prefer his evidence.

148. Nevertheless, I accept that Constable Trindall was concerned about his condition following the death of his brother and shared his concerns with fellow officers. It is clear enough from the evidence of Constable Trindall himself, as well as from the evidence of Mr Gillett and Inspector Cairncross, that following disclosures by Constable Trindall's uncle, Constable Trindall made his own disclosure of his condition to Mr Gillett which put in train a course of action that led ultimately to the permanent imposition of work restrictions upon Constable Trindall.

149. I accept generally the submissions of Mr Fernan concerning the absence of any "conspiracy" in the NSW Police Service relating to the imposition of the work restrictions. There is a coincidence of time in terms of the resolution of the disciplinary process and the instigation of the process leading to the imposition of the work restrictions. They were, however, separate processes. The police witnesses all vigorously denied pursuing the imposition of work restrictions as a result of any animosity towards Constable Trindall. Constable Trindall himself was concerned that there might be some sort of "payback" involved but it was no more than a general concern. I find that there is no persuasive evidence that the work restrictions imposed on Constable Trindall were imposed because of any animosity towards him within the NSW Police Service or for any disciplinary purpose. I find that the work restrictions were imposed because of Constable Trindall's disability and for no other reason. I should add that if I were wrong in that finding there would be a real issue whether a claim of direct disability discrimination could be made out. In determining whether there has been discrimination "on the ground of" the alleged victim's disability it is necessary to consider why the discriminator acted as he or she did, but it is not necessary for the discriminator to have acted with a discriminatory motive. The focus must be on the "real reason" for the act: Forbes v Australian Federal Police [2003] FCAFC 95 at [63]. If the "real reason" for the imposition of the work restrictions was not Constable Trindall's disability but an unrelated act of animosity, revenge, or discipline then, while Constable Trindall's claim may be actionable in another forum, it would not be actionable in this Court under the DDA and the HREOC Act.

150. The real issue to resolve is whether Constable Trindall was treated less favourably than the hypothetical comparator would have been treated in circumstances that were the same or not materially different. In resolving that issue it is necessary to consider the steps that led to the introduction of the conditions and the nature and purpose of those restrictions.

151. The initial restrictions imposed by Mr Gillett were a practical and reasonable response to the matters revealed by or about Constable Trindall. As a result of the matters revealed to him, Mr Gillett sought and got from Constable Trindall a report as to his understanding of his condition. That report asserted that the sickle cell trait may have been a factor in the death of Constable Trindall's brother and that Constable Trindall therefore had a concern in regard to his attendance at domestic violence or other volatile situations. Mr Gillett sensibly left Constable Trindall on full general duties to be restricted only in accordance with his duty officer's discretion to avoid physical or confrontational situations. This was a temporary expedient pending a proper and reliable medical assessment of Constable Trindall and required the exercise of common sense. The response by Mr Gillett to the information given to him was reasonable and commensurate with the risk revealed. The PMO (Dr Norris) supported that approach. I have no reason to believe that Mr Gillett would have acted differently if similar concerns had been raised by the hypothetical comparator. Common sense precautions needed to be taken pending a proper medical assessment. There was no discrimination in the initial imposition of informal conditions by Mr Gillett in January 2001.

152. As noted in paragraph 56 of Mr Fernan's written submissions there appears to be a little confusion as to what occurred after 24 January 2001. It appears that Mr Gillett imposed his flexible conditions before he received Constable Trindall's report. I do not think it really matters. Mr Gillett was aware of Constable Trindall's concerns following a meeting with him and those concerns were confirmed in the written report. Whether Mr Gillett's initial restrictions stemmed from the oral briefing or the written report, they were reasonable and justified and not discriminatory. I find that he would have acted in the same way had similar issues been raised by the hypothetical comparator.

153. After Mr Gillett notified the PMO of the situation Dr Norris, in his letter dated 22 February 2001, expressed agreement with the continuance of the flexible and informal restrictions until he had had the opportunity to review a haematologist's report that he had sought. Dr Norris said in that letter:

[Constable Trindall] needs to be directed by the local area command to be reviewed by and to discuss the situation with his local general practitioner as soon as possible to arrange referral to a haematologist and to see whether his general practitioner is happy with his current restrictions on his duties.

154. It is apparent that Dr Norris was seeking two things. First, he was seeking a reliable medical opinion from an appropriately qualified specialist. Secondly, he was seeking certification from Constable Trindall's treating GP whether the work restrictions that had been put in place were appropriate.

155. In accordance with Dr Norris' request, Constable Trindall obtained a referral from Dr Ling to Dr Presgrave. Dr Presgrave's report stated that there was some risk of Constable Trindall suffering a sickling episode and that he should avoid potential precipitants such as dehydration, heat exposure or physical conditioning. Importantly, Dr Presgrave did not point to any need for Constable Trindall to avoid violent or confrontational situations. The thrust of his report was that Constable Trindall should drink plenty of liquids and avoid heat exposure or extreme physical exercise. Dr Presgrave did not consider that any further medical investigation would be worthwhile.

156. Dr Presgrave's report was directed to Dr Ling and Dr Ling discussed the report with Dr Presgrave. Dr Ling understood that his task was to review the work restrictions to which Constable Trindall was subject and to provide a certificate as to his fitness to perform duty in the light of the opinion of Dr Presgrave. The certificate issued by Dr Ling on 9 April 2001 is an important document. In it Dr Ling relevantly stated:

(b) he is fit and healthy and has no chronic symptoms;

(c) it is necessary for him to avoid potential precipitants such as dehydration, heat stress, severe sudden physical exertion, domestic and other violent situations.

157. The reference in the certificate to dehydration, heat stress and severe sudden physical exertion comes from Dr Presgrave's report. The reference to domestic and other violent situations does not. Where else could it come from? In my view, the answer lies in the initial restrictions imposed upon Constable Trindall by Mr Gillett. Dr Ling had been tasked by Dr Norris to review those restrictions. He would undoubtedly have been told about them by Constable Trindall. Dr Ling gave evidence that he was aware that restrictions had been impsosed. Dr Norris had wanted to know if Dr Ling was "happy" with the then current restrictions. The certificate issued by Dr Ling indicated quite clearly in my view that he was "happy" with the informal restrictions imposed by Mr Gillett. The statement that Constable Trindall had the trait but was fit and healthy and had no chronic symptoms was consistent with the maintenance of Constable Trindall on normal operational duties. The recommendation that Constable Trindall avoid domestic and other violent situations was entirely consistent with the informal restriction imposed by Mr Gillett at the duty officer's discretion. In addition, based upon the opinion of Dr Presgrave, Dr Ling recommended that Constable Trindall avoid dehydration, heat stress and severe sudden physical exertion.

158. The more severe and formal restrictions imposed upon Constable Trindall are set out in the letter dated 8 May 2001 from Dr Norris to Mr Gillett. This followed a consultation between Dr Norris and Constable Trindall the previous day. Dr Norris states that Constable Trindall told him in that consultation that he proposed to continue on restricted duties. The reference of course could only have been to the informal restrictions imposed by Mr Gillett. In his letter, Dr Norris states that:

Dr Ling's restrictions, which seem to have gone further than those recommended by Dr Presgrave, mean that Constable Trindall has now been placed on permanent restricted duties by his treating doctors.

159. In making that statement, Dr Norris seems to have forgotten what he asked of Dr Ling. He sought from Dr Ling and received from Dr Ling an expression of agreement with the informal and flexible restrictions that had been imposed by Mr Gillett. Dr Ling's certificate did go further than the report of Dr Presgrave but only to the extent of reciting the restrictions that had been put in place subject to the duty officer's discretion.

160. In his affidavit Dr Norris stated that he felt that Dr Ling's "restrictions" were "excessively cautious given that Constable Trindall had already served for six years as an operational police officer" but said that he was obliged to abide by the medical certificate by Dr Ling. He stated that it was not possible to allow Constable Trindall to perform his normal operational duties and at the same time guarantee that he could avoid sudden physical exertion, domestic or other violent situations which are a daily occurrence in operational policing. However, Dr Norris had already expressed agreement with Constable Trindall being left on normal operational duties subject to his duty officer's discretion to avoid such situations since January 2001. In cross-examination Dr Norris said that this was merely a temporary expedient pending a reliable medical assessment. If that were the case, why did Dr Norris want to know if Dr Ling was "happy" with those "temporary" restrictions? The effect of Dr Ling's certificate was that he was "happy" with those restrictions, subject to the additional precautions flowing from the report of Dr Presgrave. It was Dr Norris' evidence that Constable Trindall could have remained on normal operational duties based upon the report of Dr Presgrave.

161. It is unfortunate that Dr Norris did not seek to discuss Dr Ling's certificate with him. He agreed in cross-examination that it was open to him to do so and that, as the PMO, he had in the past raised circumstances of doubt with treating practitioners. However, he said that he followed a kind of "precautionary principle" which meant that he always followed medical opinion pointing to a health risk to which a serving police officer was exposed. If a medical certificate pointed to unfitness for duty he would always follow it without question. If a medical certificate pointed to fitness and he had reason to doubt it he would query it.

162. I have difficulties with that approach by Dr Norris. In the first place, Dr Ling's certificate stated that Constable Trindall was fit and healthy notwithstanding that he carried the sickle cell trait. Secondly, there was nothing in the certificate which identified a need to remove Constable Trindall from normal operational duty. That was an assessment by Dr Norris himself, on the basis that it was not possible to protect Constable Trindall from possible precipitants to a sicking episode as identified in Dr Ling's certificate unless Constable Trindall was placed on formal restricted duties. It follows, and I find, that the restrictions that were imposed on 8 May 2001 were not compelled by the medical certificate by Dr Ling but were imposed by Dr Norris in the exercise of his own discretion and judgement.

163. It was also Dr Norris who made the formal restrictions permanent as evidenced by his report to Mr Gillett dated 1 August 2001. That report took into account the further specialist opinion obtained from Dr Lindeman. It also followed a further consultation between Dr Norris and Constable Trindall on 17 July 2001. Dr Lindeman's opinion was, in all material respects, the same as Dr Presgrave's. He thought that it would be sensible for Constable Trindall to take precautions to avoid the risk of a sickling episode which might be brought on by dehydration or impaired oxygenation. Dr Lindeman thought that the risk of such a sickling episode arising was small. Constable Trindall made clear to Dr Norris that he was concerned about his condition but that he wanted to return to normal operational duties.

164. The evidence establishes that over time during 2001 and into 2002 Constable Trindall expressed increasing frustration and concern about the restrictions imposed upon him. The reaction of the NSW Police Service was that nothing could be done in the absence of further medical opinion indicating that the restrictions were no longer required. Constable Trindall was unable to get anywhere with Dr Ling, a circumstance which is acknowledged by Superintendent Stewart. Dr Ling was not qualified himself to express any expert opinion and was dependent upon the experts reports provided to him. Further reviews were requested by Superintendent Stewart. Constable Trindall had obtained informal opinion from an overseas expert (Dr Konetey-Ahulu) which pointed to the restrictions imposed upon Constable Trindall being unnecessary. Dr Norris already knew that the restrictions were probably unnecessary and expressed agreement with Dr Konetey-Ahulu. However, he felt unable to act on that opinion because Dr Konetey-Ahulu was not a New South Wales registered practitioner or one treating Constable Trindall.

165. On 13 March 2002 Dr Norris approached Health Quest asking for a further medical review of Constable Trindall's fitness for operational duty. This had been sought by Superintendent Stewart. The purpose was to obtain a further assessment concerning the restrictions on duty, however, Health Quest is normally only involved when issues arise concerning the fitness of police officers to continue in employment and the process, in Superintendent Stewart's words, "went off the rails". Health Quest sent an unsigned and undated letter to Constable Trindall at the wrong address (which was received by his uncle) which warned Constable Trindall that he was facing dismissal from the NSW Police Service for reasons of medical unfitness.

166. It was only when Constable Trindall complained to HREOC that the NSW Police Service took action to obtain a further expert report from Associate Professor Mark Hertzberg. That report confirmed what Dr Konetey-Ahulu said, which was that the restrictions imposed upon Constable Trindall were unnecessary and that he was able to undertake normal operational duties.

167. In my view, the restrictions imposed upon Constable Trindall by Dr Norris were discriminatory. Dr Norris knew that Constable Trindall could have been left on normal operational duties based upon the expert opinion of Dr Presgrave. He should have known that Dr Ling was not calling for new work restrictions but was merely supporting the then status quo. Dr Norris knew that the restrictions imposed by him (not Dr Ling) were unnecessary as he had the same view as Professor Hertzberg and Dr Konetey-Ahulu. Nevertheless, he imposed them. Dr Norris did not discuss Dr Presgrave's opinion with him and neither did he discuss Dr Ling's certificate with him. In imposing work restrictions Dr Norris took inadequate account of Dr Ling's statement that Constable Trindall was fit and healthy. He apparently took no account that he had asked for Dr Ling's certificate for the purposes of finding out whether Dr Ling was "happy" with the informal restrictions that had been placed on Constable Trindall in January which left him on full operational duty subject to the duty officer's discretion. That was a common sense approach which dealt amply well with the very slight risk to which Constable Trindall was subject and it had been in place for about four months. Dr Norris told me from the witness box that he thought the critical words in Dr Ling's certificate which necessitated formal restrictions were the words that Constable Trindall should avoid "domestic and other violent situations". However, as I have already found, Dr Ling was simply repeating the terms of the informal restrictions already put in place by Mr Gillett in January 2001. Dr Norris believed (erroneously, in my view) that Dr Ling's use of those words meant that the informal restrictions that had been put in place could not be continued because a certificate had been received from a treating practitioner which pointed to unfitness to perform certain or all duties. However, as I have already found, Dr Ling was simply confirming the terms of those informal restrictions.

168. I find that Constable Trindall was treated less favourably than the hypothetical comparator would have been in the same or similar circumstances. In cross-examination Dr Norris admitted that it was part of the role of the PMO to query doubtful medical certificates. In my view, if the hypothetical comparator had presented a medical certificate stating that he was fit and healthy but should take precautions to avoid risky situations such as dehydration or extreme physical exercise the PMO would have treated the certificate as one meriting further enquiry. On the one hand such a certificate pointed to fitness to perform normal duties. On the other hand, the certificate pointed to a need for precautions. Common sense dictates that there was a need to assess whether reasonable precautions could be taken consistently with operational requirements. Mr Gillett had taken the common sense attitude of leaving the matter to the discretion of the local duty officer. A fair and reasonable interpretation of the certificate issued by Dr Ling was that those arrangements should continue. Dr Norris should not have changed them without further consultation with Dr Ling and Dr Presgrave. Properly read, Dr Ling's certificate called for the continuation of Constable Trindall on full operational duties subject to the duty officer's discretion to avoid violent situations. In the case of the hypothetical comparator, Dr Norris would have either maintained the status quo or queried the certificate. He would not have imposed work restrictions that were known to be unnecessary and that were not properly based upon the medical certificate. His failure to pursue any further consultation and to change the status quo by issuing formal restrictions that were subsequently made permanent was discriminatory.

169. Further, the discrimination was exacerbated by the maintenance of restrictions that were known to be unnecessary in the face of increasing objections and frustration from Constable Trindall and the opinion (albeit informal) of Dr Konetey-Ahulu. It should not have been necessary for Constable Trindall to complain to HREOC in order to stimulate the NSW Police Service into obtaining an expert opinion that the restrictions were unnecessary and should be removed. The situation faced by Constable Trindall between May 2001 and October 2002 was brought about fundamentally because Dr Norris failed to act thoroughly upon his professional judgement. I find that in the case of the hypothetical comparator, the PMO would have acted more thoroughly upon his professional judgement and accordingly, Constable Trindall was treated less favourably than the hypothetical comparator in the same or materially the same circumstances.

170. I find that in placing the work restrictions on Constable Trindall in May 2001 and in maintaining them until October 2002 the respondent breached ss.5 and 15(2)(a) of the DDA. That is the period when the formal restrictions on Constable Trindall were in force. Constable Trindall deposed that the restrictions were to his knowledge removed in January 2003 but in his oral evidence said that he was not permitted to resume wearing his uniform until March 2003. Dr Norris removed the restrictions by letter addressed to the NSW Police Legal Services Office dated 18 October 2002. It no doubt took longer for the removal of restrictions to be put into effect at the local level, but the delay can be explained in part by the need to deal with the complaint made by Constable Trindall to HREOC. I do not consider that the respondent should bear any liability after the restrictions were removed by Dr Norris.

171. I dealt with the issues of indirect disability discrimination in Hinchliffe v University of Sydney [2004] FMCA 85. The issues are whether Constable Trindall has been indirectly discriminated against for the purposes of s.6 of the DDA and whether the particular acts of discrimination asserted by Constable Trindall for the purposes of s.15(2) of the DDA have been proven to be unlawful. I have already found that s.15(2)(a) is applicable in relation to the restrictions placed upon Constable Trindall's employment. I make the same finding in relation to the claim of indirect disability discrimination.

172. The matters which Constable Trindall must prove for the purposes of s.6 of the DDA are different to those which I have found he has proved in relation to s.5. Section 6 relevantly requires that Constable Trindall establish that the NSW Police Service discriminated against him on the ground of his disability because the Police required Constable Trindall to comply with a requirement or condition:

(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which Constable Trindall did not or was not able to comply.

173. As I noted in Hinchliffe this necessarily requires a comparison between the position of the applicant and the position of other persons without the disability. However, as the Full Federal Court noted in Catholic Education Office v Clarke [2004] FCAFC 197 the comparison required by s.6(a) is not with the applicant personally, but with a class of persons with the applicant's disability. If there is no such actual class, it could be a hypothetical class. Mr Gibian submits that, for the purposes of s.6, the relevant requirement or condition is the requirement that Constable Trindall produce medical evidence to demonstrate that he was fit and able to perform the full range of policing duties. Constable Trindall was required to submit a report by Mr Gillett and was then directed to attend a medical assessment and obtain a medical certificate. Subsequently, after the formal restrictions were imposed, Constable Trindall was called upon to produce further medical opinion that warranted the removal of the restrictions. Mr Fernan submits that that contention misrepresents the facts.

174. As in Hinchliffe, I adopt the description by Drummond J in Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987:

The concept of a "requirement or condition" with which the aggrieved person is required to comply involves the notion of compulsion or obligation. See the definition of "require" and "requirement" in the Macquarie Dictionary, 3rd edition, and the definition of "condition" which includes the following:

"A circumstance indispensable to some result; a pre-requisite; that on which something else is contingent...something demanded as an essential part of an agreement"

and whether a "requirement or condition" within s.6 has been imposed within the context of the Disability Discrimination Act will take its colour from the particular setting in which it is said a prohibition against discrimination created by the Act has been infringed by indirect discrimination.

175. The expression "requirement or condition" in s.6 of the DDA should be construed broadly to include any form of qualification or pre-requisite, although the actual requirement or condition needs to be formulated with precision: Catholic Education Office v Clarke at [103]. In this case Constable Trindall was required by Mr Gillett to submit a report on his condition. Mr Gillett also imposed initial flexible restrictions upon Constable Trindall's performance of duty. The PMO required that Constable Trindall be examined by a specialist and that his treating GP assess the appropriateness of the temporary restrictions to which Constable Trindall was subject. Subsequently, after formal restrictions were imposed by Dr Norris, it was made clear to Constable Trindall that the restrictions could only be removed if further medical opinion was obtained which called for the removal of those restrictions.

176. In the light of these facts at a general level, Constable Trindall was simply called upon to establish by medical evidence his fitness for normal duties. More specifically, however, Constable Trindall was required to provide a medical assessment on the appropriateness on the restrictions on duty which had been imposed first by Mr Gillett and later and more formally by Dr Norris. It is that more specific expression of the requirement that I find was imposed upon Constable Trindall. The requirement to provide a medical assessment on the appropriateness of work restrictions imposed by the employer is plainly, in my view, a condition, requirement or practice for the purposes of s.6 of the DDA.

177. Mr Gibian submits that the Court should compare Constable Trindall's ability to comply with that condition with the ability of other police officers without the sickle cell trait to comply. However, as I have already noted, that is a misunderstanding of the operation of s.6. For present purposes, the obligation is to consider the position of persons with the sickle cell trait (including Constable Trindall) with persons without the trait. The ability of Constable Trindall personally to comply with the requirement is relevant but in relation to paragraph (c) rather than paragraph (a).

178. The evidence establishes to my satisfaction that persons without the sickle cell trait could more readily comply with a condition or requirement that they demonstrate their fitness for service with the NSW Police by obtaining a medical assessment of the appropriateness of any restrictions upon their service than persons without the trait. The sickle cell trait is little known in Australia and relatively poorly understood. Even where the trait is well known overseas (such as in the USA and the UK where there is a large population of black African origins) issues of restrictions upon employment have been poorly and improperly handled (see paragraph 135 above). In Australia, where the trait is little known and relatively poorly understood, the task of persons with the trait is that much more difficult. I find that a substantially higher proportion of persons without the sickle cell trait would be able to comply with the condition or requirement imposed by the NSW Police Service than persons with the sickle cell trait.

179. The next issue is whether the condition or requirement was reasonable in the circumstances of the case. It was reasonable for Mr Gillett to impose flexible and informal restrictions and to require a report from Constable Trindall about his condition so that he and other officers within the NSW Police Service could better understand the condition. It was also reasonable for Dr Norris to require Constable Trindall to be examined by a haematologist and for Constable Trindall's treating general practitioner to comment upon the initial restrictions that had been imposed informally by Mr Gillett. The PMO reasonably required a reliable expert assessment of Constable Trindall's condition and reasonably required an opinion from Constable Trindall's treating practitioner as to whether Mr Gillett's restrictions were appropriate in the circumstances. What was not reasonable was to impose the further requirement that Constable Trindall obtain further medical opinion justifying the removal of the restrictions imposed by Dr Norris. As I have already found, Dr Norris' conditions, while purportedly based upon the certificate of Dr Ling, were in fact erroneously based upon that certificate and were known by Dr Norris to be probably unnecessary and unwarranted at the time he issued them. The conditions should not have been imposed by Dr Norris in May 2001 in the absence of consultation between him and Dr Ling and Dr Presgrave. Those restrictions having been inappropriately imposed, it was not reasonable for the NSW Police Service to require that Constable Trindall provide further medical opinion to justify the removal of them.

180. Plainly, Constable Trindall was unable to comply with the requirement after May 2001. Dr Ling was completely out of his depth and dependent upon the opinion of Dr Presgrave and later Dr Lindeman. For their part, Dr Lindeman and Dr Presgrave simply cautioned in favour of the advisability of some precautionary measures and were in no position to comment upon police operational requirements. Dr Konetey-Ahulu was in a position to provide relevant medical opinion but the NSW Police Service would not act on it because Dr Konetey-Ahulu was not a New South Wales registered practitioner and was not treating Constable Trindall. Ultimately, after Constable Trindall had made a complaint to HREOC, the NSW Police Service was compelled to arrange for a further opinion itself from Professor Hertzberg. I find that Constable Trindall was unable to comply with the requirement placed upon him after May 2001.

181. I find that the respondent discriminated against Constable Trindall on the ground of his sickle cell trait by requiring Constable Trindall to produce medical opinion justifying the removal of work restrictions placed upon him in May 2001. As I have already found, those work restrictions were themselves discriminatory, pursuant to s.15(2)(a) of the DDA. The requirement that Constable Trindall produce medical opinion supporting the removal of those restrictions was in my view a further discriminatory act under s.15(2)(a). In any event, the requirement or condition imposed upon Constable Trindall that he demonstrate his fitness for service by producing medical opinion justifying the removal of the restrictions constituted a "detriment" for the purposes of s.15(2)(d) of the DDA. It was a detriment because Constable Trindall was prevented from performing the duties which he sought to perform unless he could comply with the requirement.

182. It follows that the claim of indirect disability discrimination has been established.

183. Mr Gibian puts the claim of racial discrimination upon the basis that the sickle cell trait is a condition which affects only persons from certain racial backgrounds, particularly persons of African or African American descent. While it is true that the sickle cell trait is most common among black Africans or persons of African descent, the trait occurs in persons of a variety of ethnic backgrounds, including persons of various Mediterranean backgrounds. The condition is one that is inherited. While it may well have originated in Africa, it has spread by natural inheritance through generations all around the globe. In the case of Constable Trindall, while the conduct of the NSW Police Service was based upon Constable Trindall's disability, it was not based upon his race or ethnicity. His Aboriginality was irrelevant. His black African heritage was relevant but was not a conscious factor in the actions of the NSW Police Service. The Police acted as they did because Constable Trindall had the sickle cell trait, not because he was black.

185. I accept Mr Gibian's submissions as to the general principles which should govern the assessment of non economic loss. I also accept that Constable Trindall suffered a very significant injury to his feelings and emotional and psychological distress, hurt and humiliation. He was on full restricted duties for a period of about one and a half years. Constable Trindall complained repeatedly and fruitlessly about the work restrictions imposed on him. He was concerned about his sickle cell trait before the work restrictions were imposed, and the work restrictions could only have exacerbated his concerns - because they gave credence to a false impression of the risk of injury and sudden death. He suffered depression, anxiety and sleeplessness and was placed on medication. He was enrolled in, but failed to complete, the constable development programme. I find that his poor psychological state was a factor in that failure. The situation was not remedied until Constable Trindall complained to HREOC. It should have been remedied much earlier, at least from the time when Constable Trindall presented his correspondence with Dr Konetey-Ahulu.

186. Mr Fernan submits that general damages should be restricted to around $5,000. I disagree. That was the amount of general damages for non-economic loss that I awarded in Mayer v ANSTO [2003] FMCA 209. Constable Trindall suffered much more grievously than did Samantha Mayer. Constable Trindall's loss was at least as great as that of Ms Rispoli in Rispoli v Merck Sharpe & Dohme & Ors [2003] FMCA 160. I awarded general damages of $10,000 in that case. I will award the same amount of general damages in respect of non-economic loss in this case.

187. As for economic loss, I find that the only economic loss suffered by Constable Trindall was the loss of the opportunity to perform some overtime and shift work. I accept Mr Gibian's submission that between 6 January 2000 and 28 September 2000 Constable Trindall earned approximately $480 per month in overtime and shift allowances. I also accept Mr Fernan's submissions that Constable Trindall was not denied all overtime and shift allowances during the period when he was subject to formal restrictions upon his duties. Whilst there was no guarantee of Constable Trindall receiving overtime and shift allowances, I find that Cosntable Trindall had a reasonable expectation of receiving allowances on average of not less than $480 per month. Constable Trindall should receive damages for economic loss for the difference between $480 per month and the actual overtime and shift allowances received by Constable Trindall for the period between the imposition of the formal restrictions on 8 May 2001 and their removal on 18 October 2002. That amount will have to be calculated by the parties. In the meantime, I will make a declaration as to the discrimination suffered by Constable Trindall.

188. Constable Trindall is not entitled to receive any advancement in grade or any damages for economic loss in respect of a lost opportunity to achieve advancement in grade. I have already taken into account Constable Trindall's inability to complete the constable development course for the purposes of assessing non economic loss. No further damages in relation to that aspect are recoverable.

189. Constable Trindall should also receive interest up to judgment at the rate of 10.5 per cent from 8 May 2001 (the date of the imposition of the formal restrictions upon his duties by Dr Norris). I will so order. Constable Trindall is entitled to interest on the judgment pursuant to the Federal Magistrates Act 1999 (Cth) and Federal Magistrates Court Rules 2001 (Cth) without any order.

190. I will not order the provision of an apology. It would in my view be of no real value to Constable Trindall unless it is genuine and sincere. If, in the light of these reasons, the NSW Police Commissioner genuinely and sincerely wishes to apologise to Constable Trindall, no order is necessary.

I certify that the preceding one hundred and ninety one (191) paragraphs are a true copy of the reasons for judgment of Driver FM

[1] AustLII, Employment and Workplace Issues - [2002] Hot Topics 1 at page 3