Wadlow-Evans v Department of Communities and Justice

Adjournment application

1. At the hearing of the matter, the applicant sought an adjournment in order to obtain legal advice or further advice. The Tribunal considered that application.
2. The application was referred to NCAT by Anti-Discrimination NSW on or around 4 March 2021. In view of the elapse of time since the matter had been transferred to the Tribunal, the application for an adjournment on those grounds was not considered reasonable and was refused. The Tribunal has a statutory obligation to ensure that matters are conducted with reasonable promptness and that the real issues in dispute are dealt with in a way that is just, quick and cheap, as set out in s36(1) of the Civil and Administrative Tribunal Act, 2013.

Orders sought by the applicant

1. The Orders sought by the applicant, as set out in her submission dated 13 December 2021, are payment of compensation of $20,000, an Order to move the Anti-Discrimination Board (as it then was) ('ADB') from the Department of Communities and Justice ('DCJ') to the parliament, an order for issuance of formal official apologies and assurances of non-repetition, and an order for wider dissemination of the case.

Legislation

1. Section 4 of the ADA defines the term 'disability' as follows: "disability" means - (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour."
2. Section 49A provides as follows: "A reference in this Part to a person's disability is a reference to a disability - (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability)."
3. Section 49B provides that: "(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator - (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability…. (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability."
4. Section 49B(1)(a) deals with what is often referred to as 'direct discrimination' and s49B(1)(b) deals with what is often known as 'indirect discrimination'.
5. Section 49M proscribes discrimination in the provision of goods and services and provides as follows: "(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability - (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services."
6. Section 4A of the ADA provides that: "If - (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason."

What is required in order to establish a claim of discrimination?

1. In order to establish a claim of direct discrimination for the purposes of s49B(1)(a) of the Act, the applicant needs to establish that at least one of the reasons she was treated less favourably than others in the same or similar position (sometimes referred to as 'differential treatment') was "on the grounds of" her disability (sometimes referred to as 'the causation question').
2. In Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [60] - [65], the Tribunal discusses how the question of whether or not there has been "less favourable treatment" of the applicant "than others in the same or similar position" where the comparator is a hypothetical comparator, as it is in this case. This case is similar to Dutt in that, as stated in Dutt: "The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant's race would have been treated differently."
3. This case involves alleged disability discrimination rather than the alleged racial discrimination in Dutt.
4. The words "on the grounds of" have been paraphrased as "because of", "due to," "a real" reason, a "genuine" reason or "true reason" for the treatment alleged to have been discriminatory (Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28]).
5. A person may be considered to have been treated in a discriminatory fashion on the grounds of a disability if the person has or had, is thought to have had or to presently have, or will have in the future, or is thought to have in the future, a disability, or because a person exhibits a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. Where proven, each of those constitute direct disability discrimination.
6. A person may also experience indirect disability discrimination as set out in s49B(1)(b) of the ADA, if a requirement operates differentially on a person with that disability as compared with a person who does not have that disability, perceived disability or characteristic of that disability.
7. In this case, although the application was not articulated in terms of indirect disability discrimination, the applicant alleged that the requirement to appear in person impacted differentially on her, it was more difficult for her to meet that requirement than it would have been for someone without her disability and therefore, in her view, she ought to have been offered "reasonable accommodation of disability" which she has referred to as 'RAD'.
8. The applicant bears the onus of proof that she was treated less favourably "on the grounds of", "because of" or "due" (at least in part) to the disability (Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99 at [56]) and, in relation to an indirect disability discrimination claim, she also bears the burden of proof.
9. If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered (Dutt v Central Coast Area Health Service [2002] NSW ADT 133 at [59] - [65]; Commission of Corrective Services v Aldridge [2000] NSWADTAP 5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].)
10. It is not the case that because a person has a disability and experiences something he or she perceives as "adverse" to them, that the conduct is discriminatory simply because the person has a disability. The person needs to prove that, on the balance of probabilities, the alleged conduct occurred "on the ground of", "due to" or "because of" the disability of the person. To put it another way, the applicant is required to prove that the real reason for the alleged conduct was the disability of the person, actual or imputed.
11. The fact that a person has, had, may have or be thought to have, a disability is not sufficient to prove discrimination on the grounds of disability, as indicated above. It is also necessary to show that there was differential treatment and that the reason, or a reason, for the treatment was the disability (either actual or imputed) ('the causation question'), which is dealt with below.

Evidence of Disability

1. It was not in issue that at the time of the events the subject of this application, the applicant suffered from a disability or disabilities. A medical report from the applicant's doctor, Dr Arthur Chesterfield-Evans, dated 23 March 2020, was in evidence stating that the applicant suffers with idiopathic environmental intolerances, formerly called multiple chemical sensitivity, which she sustained initially as a reaction to farm chemicals, but now extends to "a large number of chemical triggers which include apparently innocuous substances such as vinegar, toilet cleansers or people wearing perfumes". Dr Chesterfield-Evans states that this means that the applicant has "life-threatening responses to her surrounds in many premises including such premises as courts where a sustained number of people gather. If she attends then there is considerable likelihood that she will collapse, and as a direct result of her disability she may be unable to be resuscitated by paramedics or need to be conveyed to hospital, as she is allergic to chemicals, deodorants, perfumes, soaps etc, especially hand sanitizers and disinfectants. One of her responses is a sudden rise in blood pressure "to stroke level." Further, he adds that "At the present time she also has severe asthmatic lung problems and is a person at increased risk in relation to covid-19" and "I saw Josephine Wadlow-Evans on 16/3/20 and noted her laboured breathing. She was also very affected by the heavy smoke over Sydney during the fires." The medical report from Dr Chesterfield-Evans dated 23 March 2020 states that "She should not attend court and other arrangements need to be made."
2. A medical report from Dr Chesterfield-Evans in similar terms dated 7 July 2020 and addressed to the Burwood Local Court Registrar was also in evidence. Critically, it adds that "Her disability is an on-going situation as this sensitivity is permanent". This was not stated in the earlier certificate.
3. The applicant also submitted historical medical evidence back to 1997 from other medical practitioners in relation to her condition, confirming that she has such a condition, idiopathic environmental intolerances.

History of proceedings giving rise to this application

1. The sequence of events leading to this application is set out in the affidavit of Ms Brenda Ibbotson, Registrar, Court Services, Burwood Local Court, dated 13 January 2022. Ms Ibbotson says that on 24 September 2018, the applicant filed an application for an Apprehended Personal Violence Order ('APVO') against Mr Mark Johnson with the Burwood Local Court registry ('APVO proceedings').
2. The applicant states that on Friday 13 November 2018, at Burwood Local Court, a magistrate issued an interim APVO against Mark Johnson for the protection of the applicant.
3. On 18 June 2019, the court dismissed the APVO proceedings, and the applicant was ordered to pay the costs of Mr Johnson in the amount of $2,500.00 (referred to here as 'the judgment debt'). A Court Notice confirming those details is annexed to the affidavit of Ms Ibbotson. It states that Ms Wadlow-Evans was ordered by the Court to pay costs in the amount of $2,500.00, with 28 days to pay. The order was made by Magistrate D Reiss and the Court Notice is signed by Ms Ibbotson. If the applicant disagreed with that decision, then she had the option of appealing it.
4. On 12 September 2019, Mr Johnson filed an Examination Notice in respect of the judgment debt, following the dismissal of the APVO proceedings. Where a Court has made an order that a person pay money to another person, and that person fails to pay, enforcement measures may be taken to enforce payment of the debt.
5. The Examination Notice required the applicant to complete a financial statement providing evidence of her income, assets and liabilities and produce copies of certain documents to Mr Johnson by 17 October 2019. Those documents would have indicated whether there was any reason that Ms Wadlow-Evans could not pay the judgment debt, namely costs of the APVO proceedings, that the Court had awarded against her. If she needed more time to pay the judgment debt, then the information would have provided a basis for the Court to determine whether a payment plan was appropriate.
6. As no documents were supplied by Ms Wadlow-Evans setting out her income, assets and liabilities, on 18 October 2019 an Examination Order was issued by Mr Johnson for an Examination to be held on 21 November 2019. That is the usual step that follows a failure to provide the requested documents and it was not unusual that it was issued. The Examination Order required that the applicant attend in person at Court to be examined about her income, assets and liabilities as she had not provided any documents to set out her income, assets and liabilities.
7. This Examination Order was not served on Ms Wadlow-Evans, and on the application of Mr Johnson, the application was adjourned to 30 January 2020. On that date it has still not been served on Ms Wadlow-Evans, so the matter was adjourned to 26 March 2020 to provide sufficient time for the document to be served on her.
8. On 23 March 2020, the applicant emailed the registry, attaching a medical certificate from Dr Arthur Chesterfield- Evans dated 23 March 2020.
9. Ms Ibbotson states in her affidavit that, in reviewing the medical certificate, she noticed that it specifically referred to the examination date of 26 March 2020 and current environmental conditions that impacted the applicant's disability, and therefore her ability to attend court - for example referring to the Covid-19 pandemic restrictions and the impact of the heavy smoke over Sydney during bushfires that affected air quality and which had greatly affected the applicant.
10. Ms Ibbotson says that she was also aware that the applicant had attended court on previous occasions in relation to the APVO proceedings. For these reasons, she understood that the applicant was temporarily unable to attend court on 26 March 2020 and for this reason she adjourned the examination to 25 June 2020 and then (in the midst of the Covid 19 pandemic and without requiring an appearance by Ms Wadlow-Evans) further adjourned it to 16 July 2020.
11. Annexed to the affidavit of Ms Ibbotson are a number of emails, including one dated 29 December 2018 from Ms Wadlow-Evans stating in part: "What was the date that an application was made to have an APVO - the three of us came in and made an application…to which an in-house magistrate looked at the documents and gave consent for it to be heard…the three of us being…and Josephine Evans (having a double-barrelled name sometimes confuses all and sundry".
12. The words "the three of us came in and made an application" seem to confirm that, as Ms Ibbotson attests from the court file, the applicant did attend court in person when the application for the APVO was made. Thus, Ms Ibbotson concluded that the inability of the applicant to attend court in person as attested in the letter of Dr Chesterfield-Evans of 23 March 2020 may have been time bound, rather than necessarily an on-going inability to attend court (which his letter of 7 July 2020 states clearly.).
13. Ms Ibbotson states that she considered that, on the basis of the applicant's medical certificate of 23 March 2020, she should be afforded an adjournment to 25 June 2020 and that she should provide a new medical certificate if her health still prevented her from attending court on that date.
14. Ms Ibbotson states that she understood that the examination process was legally required to be conducted in person at court, pursuant to Rule 38 of the Uniform Civil Procedure Rules, 2005. An order for Examination requires the judgment debtor to attend court to answer questions and to show documents about their financial position. It is required to be held in the same place where the judgment was entered, unless the judgment debtor resides or carries on business more than 30 km from that court registry.
15. The applicant disputed that she was ordered to pay costs by the Court, as is clear from a number of emails from her that are annexed to the affidavit of Ms Ibbotson, where the applicant states, for example, on 2 April 2020: "Please provide me with written evidence that in the event of a 'debt' one refused to pay…where on the court's file does such evidence exist…what the court is doing is intimidatory…"
16. The documents the applicant has filed also indicate that, in her view, it was an invasion of her privacy to ask her about her income, assets and liabilities.
17. The applicant did not appear on 25 June 2020. Restricted services were in operation at the court in June 2020 due to Covid-19 and all files were being reviewed by registry staff at that time to minimize appearances. Ms Ibbotson adjourned the matter again to 16 July 2020 for appearance or provision of a medical certificate.
18. The applicant appears to have provided the letter from Dr Arthur Chesterfield-Evans dated 7 July 2020 to Burwood Court in anticipation of the requirement to attend Court on 16 July 2020.
19. On 10 July 2020, Mr Johnson emailed the registry advising that he had successfully recovered the judgment debt. A copy of the email from Mr Johnson was exhibited to the affidavit of Ms Ibbotson. It relevantly states as follows: "Thanks for the patience with this matter. We have successfully recovered the money now. Please inform me how best to wrap up the entire matter inc (sic) the pending court date."
20. As a result of that email from the person to whom the judgment debt was owed, the court date of 16 July 2020 was vacated and the application for enforcement by an Examination of the applicant's means was dismissed.
21. The applicant alleges that she did not pay any money to Mr Johnson, but the Court did not ask her that question and, in view of the email from the person to whom the judgment debt was owed, the court dismissed the matter.
22. Thus, the applicant was not required to provide any further medical certificate or to appear at Burwood Local Court on any further occasion.

Arguments of the Applicant

1. In her submission dated 24 December 2020, the applicant stated that in postponing the matter for two months (from 26 March 2020 to 25 June 2020), there was a denial of reasonable accommodation in the form of permitting her to appear by telephone, which the applicant says was the only viable alternative to physical appearance. In adjourning the matter for two months, the applicant argues that the court was in breach of its obligation to provide reasonable accommodation to a person with a disability.
2. It should be noted that the medical certificate dated 23 March 2020 did not suggest telephone appearance and there was no request from the applicant for an appearance by telephone instead of an appearance in person, rather she simply submitted the medical certificate.
3. The applicant submitted considerable documentation in support of her claim, including material such as the NCAT Annual Report, the Universal Declaration of Human Rights, other United Nations documents, reports of reviews of statutory organisations, summaries of discrimination law and other material. Where relevant, we have had regard to those documents.

Defences relied upon by the Respondent

1. The letter from the respondent dated 27 January 2021, signed by Ms Elizabeth Latter, General Counsel for the respondent, points out that Ms Wadlow-Evans had the opportunity to respond to the Examination Notice issued by Mr Johnson by completing a financial statement and producing copies of certain documents to him by 17 October 2019. Had she done this, there would have been no need to attend court in person.
2. The letter asserts that the exercise of a discretion to process applications for AVOs is not a 'service' for the purposes of the Act and, in any event, denies that Burwood Local Court Registrar "discriminated against Ms Wadlow- Evans on the grounds of her disability" as proscribed in section 49 of the Act.
3. Further, the respondent refers to section 44C of the Judicial Officers Act 1986 (NSW) which confers upon a registrar, when performing the duties of a judicial officer, protection and immunity from civil suit in respect of decisions and associated actions done in performing those duties. The respondent submitted that the Registrar's decision to adjourn the examination date to 25 June 2020 constitutes performance of a judicial function in the exercise of the court's jurisdiction and powers and is therefore protected by judicial immunity.
4. In its letter of 27 January 2021, the respondent argued that there is a real question as to whether any of the acts and/or omissions complained of would fall within the meaning of 'services' for the purpose of section 49M of the Act. The respondent relied on the need to identify goods or services with sufficient precision to relate them to the facts of the case and the issues which arise for determination: Waters v Public Transport Corporation (1991) 173 CLR 349 per McHugh J. It also pointed to the decision of the predecessor to NCAT, the Administrative Decisions Tribunal, in Budd v State of New South Wales (Attorney General's Department) 2007 NSW ADT 112, which found a discretion to refuse to issue process by a court could not be described as a service that the court provides to applicants for AVOs, as it is the exercise of a discretion to process applications for AVOs for the protection and general benefit of the broader population.

Consideration

1. We accept that the applicant has a disability or disabilities within the meaning of the Act, as claimed.
2. We accept the argument of the respondent that an Examination is conducted by the Court pursuant to Section 108 of the Civil Procedure Act 2005 (NSW) and Part 38 of the Uniform Civil Procedure Rules 2005 ('UCPR'). Registrars of the Local Court are authorized to exercise the Court's powers of Examination pursuant to a delegation from the Chief Magistrate under section 13 of the Civil Procedure Act. These powers include the power under section 108(1) of the Civil Procedure Act to require a person bound by a judgment or order to attend the court to be orally examined as to any material question, or to produce any document or thing that is in his or her possession and that relates to a material question, and powers in rules 38.3 to 38.5 of the UCPR are in respect of examination orders, venues for examination and the conduct of examination.
3. In this case, an order had been made by the Local Court that the applicant pay the sum of $2,500 to Mr Mark Johnson upon the dismissal of the APVO proceedings. Notwithstanding the applicant's disagreement with that Order, we are satisfied that the Order was made.
4. The applicant apparently attended court when she sought the apprehended violence order. On the basis of this understanding, when considering the medical certificate presented on 23 March 2020, it was reasonable for the Registrar to assume that the applicant's condition as stated in the medical certificate may not always be at the same level of severity, given her previous ability to attend court in person when the APVO was filed and an interim order was issued.
5. Thus, the decision by the Registrar to adjourn the matter based on the information she had to hand was, in all the circumstances, a reasonable decision.
6. Where there is a reasonable and innocent explanation for a course of action, it is not appropriate to infer that there was a discriminatory reason for conduct. As set out in Dutt at [70], the Tribunal has identified considerations in the drawing of inferences as follows: 1. a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts 2. an inference must be reasonably drawn on the basis of the primary facts 3. an inference can be drawn from a combination of facts, none of which viewed alone would support that inference. 4. a fact relied on as the basis of an inference need not be proved to the requisite standard of proof 5. it is not enough that the inference is a mere possibility: it must be one of "probable connection" 6. the inference must be a logical one, and not supposition 7. an inference cannot be made where more probable and innocent explanations are available on the evidence.
7. In this case, there is no persuasive evidence supporting the drawing of an inference that there was disability discrimination in the decision of the Registrar to adjourn the matter in light of the medical certificate of the applicant.
8. The plausible and probable reason for the decision of the Registrar as to how to deal with the medical certificate was the reason she gave in her affidavit - namely, that as the applicant had appeared in person previously in the matter and as the certificate itself indicated that there were some particular factors affecting the likely risk of attending (including smoke inhalation from bushfires and risks due to Covid-19), it remained possible that her condition fluctuated and that the applicant may be in a position to attend if given a little more time to do so. For those plausible and understandable reasons, she adjourned the Examination and ordered that on the next occasion an updated medical certificate should be presented.
9. We find that it is not, therefore, appropriate to infer that the Registrar treated the applicant less favourably than others due to her disability and in determining that it was appropriate to adjourn the hearing.
10. The later medical report from Dr Chesterfield-Evans, dated 7 July 2020 stated that: "At the present times she has severe asthmatic lung problems, as a direct result of her on-going disability. These result in episodic respiratory distress, which has quite a number of triggers. Equally, as there is a pandemic relating to Coronavirus, she is a person at increased risk…Her disability is an ongoing situation and this sensitivity is permanent. She should not attend court and other arrangements need to be made."
11. That medical report of 7 July 2020 indicated that the condition is permanent and that the applicant should not be required to attend court at all. In fact, she was not required to attend court again, as the person in whose favour the award of costs was made advised the registry that the costs had been paid and he wanted to "wrap up" the matter. Ms Wadlow-Evans denies that she made payment.
12. We have considered whether the applicant was indirectly discriminated against in the circumstances of this matter, for purposes of s49B(1)(b) of the Act. The allegation of indirect discrimination arising from adjournment of the proceedings on 25 March 2020 is also rejected for the reasons set out below.
13. The onus is on the applicant to show that the requirement to attend court or provide an updated medical certificate was not reasonable having regard to the circumstances of the case: Gardiner v NSW WorkCover Authority [2003] NSWADT 184 at [66].
14. In Commonwealth Bank of Australia v Human Rights and Equal Opportunities Commission) (1997) 80 FCR 78 ('the Finance Sector Union Case') the Federal Court examined the question of what "reasonable in all the circumstances" meant. This is similar, though not identical, language to that used in the Anti-Discrimination Act, NSW. In the Finance Sector Union Case, Justices Sackville and Davies both referred to various High Court and other authorities including Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251, Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 ('Dopking No 2').
15. Justice Sackville summarises the position as follows: "A number of cases have considered the proper construction and application of s 5(2)(b) of the SD Act, or of equivalent provisions in other legislation. The principal authorities are Secretary, DFAT v Styles (a case concerning s 5 of the SD Act); Waters v PTC (concerning the Equal Opportunity Act (Vic)); Dopking (No2) (concerning s 6 of the SD Act 1975, dealing with discrimination on the ground of marital status); and AMC v Wilson (concerning the Racial Discrimination Act (Cth)). Some propositions can be distilled from these cases. In my view, they are consistent with the beneficial approach to the construction of anti-discrimination legislation, as applied most recently in IW v City of Perth [1997] HCA 30; (1997) 146 ALR 696, at 702, 704, per Brennan CJ and McHugh J; at 710, per Dawson and Gaudron JJ; at 724, per Gummow J. First, the starting point in determining whether a requirement or condition is "not reasonable having regard to the circumstances of the case" are the observations of Bowen CJ and Gummow J in Styles (at 263) that: "the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience....The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account." This passage was approved in Waters, at 395-396, per Dawson and Toohey JJ; at 383, per Deane J; compare at 365, per Mason CJ and Gaudron J. It was applied in Dopking (No2), at 82, per Lockhart J; at 86, per Sheppard J; at 96, per Lindgren J; and in AMC v Wilson, at 60, per Heerey J (with whom Black CJ and Sackville J agreed). In Dopking (No2), at 82-83, Lockhart J said that the test: "required the Commission, first, to examine the reasons in favour of the condition, and secondly, to weigh those reasons against the nature and extent of the discriminatory effect of the condition. The conclusion of discrimination within s 6(2) of the [SD] Act can be valid only when the Commission determines that, in all the circumstances, the difference of treatment between members without a family and members with a family is not reasonable." Since the test is objective, the subjective preferences of the aggrieved requirement. Subjective preferences "may be relevant in determining the reasonableness of the alleged discriminatory conduct; but ultimately, the test must be an objective one, applied by the Commission after considering all the material facts." Dopking (No 2), at 83, per Lockhart J. Secondly, the non-reasonableness of the requirement or condition is itself part of the definition of discrimination in s 5(2). Thus s 5(2)(b) is to be applied according to its terms and is not to be influenced by any concept of discrimination existing outside the statutory definition: Waters v PTC, at 409-410, per McHugh J; see also at 378, per Brennan J; at 394-396, per Dawson and Toohey JJ; at 383-384, per Deane J; at 365, per Mason CJ and Gaudron J; Dopking (No2), at 96, per Lindgren J. As Brennan CJ and McHugh J observed in IW v City of Perth, at 702, many anti-discrimination statutes define discrimination and the activities which cannot be the subject of discrimination "in a rigid and often highly complex and artificial manner. As a result, conduct that would be regarded as discriminatory in its ordinary meaning may fall outside the [Equal Opportunity Act 1984 (WA)]. The object referred to in s 3(a) of the Act must, therefore, be understood by reference to the definitions of discrimination which occur in various parts of the Act". [Citations omitted.] Thirdly, it would be erroneous for the Commission to assume that any difference of treatment between the complainants and (in this case) other employees of the Bank is prima facie discriminatory and therefore unreasonable: Dopking (No 2), at 82-83, per Lockhart J. The complainants bear the onus of establishing that the condition or requirement is not reasonable in the circumstances of the case: Waters v PTC, at 411, per McHugh J, Dopking (No2), at 83, per Lockhart J; Dopking (No 2), at 96, per Lindgren J; AMC v Wilson, at 62, per Heerey J. Fourthly, reasonableness (or non-reasonableness), for the purposes of s 5(2)(b) of the SD Act, is a question of fact for the Commission to determine, but it can only do so by weighing all relevant factors. What is relevant differs from case to case, but will, usually at least, include the financial or economic circumstances of the alleged discriminator, including its ability to accommodate the needs of the aggrieved persons. It may also be relevant to consider the availability of alternative approaches which would achieve the objectives of the alleged discriminator, but "in a less discriminatory way": Waters v PTC, at 394-395, per Dawson and Toohey JJ; and see at 383-384, per Deane J; at 410, per McHugh J. As Brennan J pointed out in Waters v PTC (at 378), reasonableness cannot be determined in the abstract: "[I]t must be determined by reference to the activity or transaction in which the putative discriminator is engaged. Provided the purpose of the activity or transaction is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity or complete the transaction. There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; second, whether the activity could be performed or the transaction completed without imposing a requirement or condition that is discriminatory (that is, one to which pars (a) and (b) of s 17(5) [equivalent to s 5(2)(a) and (c) of the SD Act, respectively] would apply) or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity or completing the transaction and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable." Fifthly, the role of the Commission is not to determine whether the decision to impose the condition or requirement was the "correct" one. The point was put this way by Heerey J in AMC v Wilson (at 61-62), adopting a passage in the judgment of Sheppard J in Dopking (No2): "'reasonable' in this context speaks of a term, condition or requirement that is dictated by reason and rationality - not necessarily in which all people or even most people agree. In Dopking Sheppard J emphasised what is in my respectful opinion an important aspect of reasonableness in an indirect discrimination context. The case was concerned with a complaint by Mr Dopking that a Defence Department determination that a benefit for the reimbursement of legal and other costs in connection with the acquisition of off-base accommodation by armed services personnel discriminated against him because it was restricted to personnel with families. Mr Dopking, being single, was entitled to full board in barracks but wished to live in his own home. Sheppard J said (at 87): 'The basis for the discrimination which results from [the determination's] application only to married members is, in the circumstances of the case, within the bounds of objective reasonableness. In other words, the point of distinction which has been adopted has a logical and understandable basis. There may have been other ways of approaching the problem; views may differ about the matter. But, in my opinion, there was nothing unreasonable in adopting the point of distinction applied by those responsible for the determination. With respect, I do not consider any other view to be open. I am thus unable to see how it can be said that the adoption of the policy to which the determination gives effect is unreasonable having regard to the relevant circumstances.'" It may be that the passage cited from the judgment of Sheppard J in Dopking (No.2) somewhat overstates the position. The fact that a distinction has a "logical and understandable basis" will not always be sufficient to ensure that a condition or requirement is objectively reasonable. The presence of a logical and understandable basis is a factor - perhaps a very important factor - in determining the reasonableness or otherwise of a particular condition or requirement. But it is still necessary to take account of both the nature and extent of the discriminatory effect of the condition or requirement (in the sense in which the authorities interpret that concept) and the reasons advanced in its favour. A decision may be logical and understandable by reference to the assumptions upon which it is based. But those assumptions may overlook or discount the discriminatory impact of the decision. Depending on the circumstances, such a decision might be legitimately characterised as not reasonable, having regard to the circumstances of the case, within the meaning of s 5(2)(b) of the SD Act 1984. I do not understand Heerey J to have intended to express a different view in AMC v Wilson. However, in my respectful view, Sheppard J's judgment correctly emphasises that the question is not simply whether the alleged discriminator could have made a "better" or more informed decision. The issue is that posed by the legislation, namely, whether the requirement is not reasonable having regard to the circumstances of the case."
16. The summary of the meaning of the term 'reasonable in all the circumstances' (the term is used in the Sex Discrimination Act 1984 (Cth)) set out above by Sackville J in the 'Finance Sector Union Case,' has been oft-quoted and applied in subsequent decisions in relation to the issue, including decisions in relation to the Anti-Discrimination Act, (NSW).
17. Applying these statements of the law to the facts of this case, we find that the requirement for the applicant to attend court in person or else provide an updated medical certificate was "reasonable having regard to the circumstances of the case" for the purposes of s49(1)(b) of the Act, given the wording of the medical report of 23 March 2020 which appeared to relate to a specific date, to the effect of bushfire smoke on the medical condition and to the heightened risk of Covid-19 for the applicant.
18. In addition, the applicant's previous attendance at court in person is a relevant circumstance that, considered along with the terms of the medical report, made it reasonable for the Registrar to adjourn the matter with a requirement for an updated medical certificate if the applicant was unable to attend in person on the next occasion.
19. It was always open to the applicant to make clear to the Registrar that at no time in the future was she likely to become well enough to attend court in person, if that were the case. If so, her doctor could have clearly indicated that in a medical report (as he did in his letter of 7 July 2020) and either the applicant or her doctor could have requested that a telephone or audio visual hearing be conducted and arrangements made for the applicant to provide documents to the Court electronically or by post.
20. The Applicant has not demonstrated that the requirement that she provide an updated medical certificate if she was unable to attend court on the next occasion was a requirement with which she could not comply, for the purposes of s49(1)(b) of the Act. She did, in fact, comply and sent in the certificate dated 7 July 2020.
21. Further, no data or argument has been presented regarding possible comparators.
22. We therefore find that adjourning the matter to a later date was not unreasonable in the circumstances and the claim of indirect disability discrimination has not been made out.
23. As the party in whose favour a cost order had been made no longer wished to pursue costs, she was never required to attend court regarding the matter.
24. The respondent has argued that when adjourning the Examination and requiring the applicant to attend in person or produce a further medical certificate at that future hearing, the Registrar was acting as a judicial officer for the purposes of section 44C of the Judicial Officers Act 1986 (NSW) and has immunity from civil action including in relation to the Anti-Discrimination Act (NSW). It has also argued that there was no 'service' involved. These matters were not fully argued. In view of our findings in relation to discrimination, it is not necessary for us to determine those matters.

Conclusion

1. For the reasons set out above, we are not satisfied that the claims of discrimination made by the applicant have been made out.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 September 2022