YMX v Becton Dickinson Pty Ltd

1. Becton Dickinson and Company is the parent company of the Respondent. The Respondent, Becton Dickinson Pty Ltd, is the Australian subsidiary of the US company, Becton Dickinson and Company.
2. The particular style of catheter, which was manufactured in the US by the Respondent's parent company, was purchased by the Appellant from time to time from companies within Australia which had been appointed by the Respondent as distributors for that purpose.
3. The Respondent does not manufacture any products. It supplies and distributes products manufactured by its US parent in Australia.
4. In 2017, the US company, which manufactured and distributed a 26 cm Foley catheter globally, namely CR Bard Incorporated, was acquired by the US Becton Dickinson and Company. CR Bard had an Australian subsidiary, Bard Australia Pty Ltd. After the acquisition, this company changed its name to Becton Dickinson Pty Ltd.
5. In September 2021, the US parent discontinued the manufacture of the 26 cm Foley catheter. In February 2023, the Appellant contacted her regular supplier in Australia to re-order the catheter and was advised the product had been discontinued. She has since been unable to obtain the 26 cm Foley catheter in Australia and contends that she has been unable to source an alternative for the 26 cm Foley catheter. The Appellant contends that the only catheter available is a "male" length catheter, which is not suitable for women or people with a disability who require a shorter catheter. The discontinuance of the 26 cm Foley catheter and refusal to supply the product is alleged to be unlawful discrimination on the grounds of both sex and disability.
6. On 17 March 2023, the Appellant lodged a complaint with the NSW Anti-Discrimination Board (ADB) against the Respondent and Joanna Cubis, an employee of the Respondent, alleging sex discrimination in the provision of goods and services. A delegate of the President of the ADB accepted for investigation the complaint under s 89B of the ADA against the Respondent but declined the complaint against the employee as the conduct attributed to her was done in her capacity as an employee and representative of the Respondent. A further complaint was made by the Appellant alleging disability discrimination in respect of the provision of goods and services and this complaint was accepted for investigation on 8 December 2023. The period of the alleged conduct was identified by the ADB to be the period from 1 February 2023 and 17 March 2023. The ADB identified that the complaint involved allegations of sex and disability discrimination.
7. There is no dispute about the Appellant's disability, the characteristics of the 26 cm Foley catheter or that the Respondent's US parent company had discontinued the manufacture of this product by the time the Appellant sought to re-order the product and that the product has not been able to be sourced by the Appellant in Australia from that time.
8. The Respondent contends that it did not discriminate against the Appellant on either ground, it does not supply catheters directly to the public but to distributors, hospitals and aged care facilities and it did not refuse to provide or supply the 26 cm Foley catheter to the Appellant. The 26 cm Foley catheter is, and remains, unavailable because of a commercial decision made by the US parent company to discontinue the manufacture of the product.

1. The Tribunal in its Decision set out the relative statutory provisions as follows:

[13] The ADA renders discrimination unlawful on certain grounds and in certain circumstances. The grounds include discrimination on the grounds of race, sex, disability, transgender, marital or domestic status, religion, carer responsibilities, homosexuality and age.

[14] Section 4A provides:

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

If--

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

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

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

[15] Part 3 deals with discrimination on the ground of sex.

[16] Section 24 sets out what constitutes discrimination on the grounds of sex and relevantly provides:

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

(a) on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

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

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

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

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

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

[18] Part 4A deals with discrimination on the ground of disability.

[19] Section 49A provides that disability includes past, future and presumed disability. Section 4 defines the terms "disability" to mean:

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or

(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person's body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

[20] Section 49B sets out what constitutes discrimination on the ground of disability and provides:

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

(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

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

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

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

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

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

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

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

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

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

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

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

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

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

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

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

1. At the hearing Mr Stuart Hayes, Interventional Business Director of the Respondent, provided written evidence and was cross examined.
2. Part of his evidence as recorded by the Tribunal was as follows:

[47] The 26 cm Foley urinary catheters were manufactured by Becton Dickinson and Company. These catheters were not manufactured in Australia and have always been manufactured overseas. The Respondent, which is a wholly owned Australian subsidiary company previously known as Bard Australia Pty Ltd, does not manufacture any products and supplies and distributes the products of the US parent company in Australia. It does not sell any products to individuals end-users such as the applicant. Nor does it have an e-commerce platform that could permit individuals to purchase any of the products directly online.

[48] The Respondent sells medical devices to health care providers, including hospitals, residential aged care facilities and distributors. Distributors are businesses that enter into an agreement with the Respondent to sell products to end-users. There is no agreement directly between the Respondent and individual consumers. For a business to become and remain a recognised distributor of the Respondent, distributors are required to meet certain criteria which include having an Australian business number and purchasing a minimum of $10,000 worth of products. The Respondent has contracts for the distribution of products with approximately 125 distributors. Approximately 5% of the Respondent's revenues are managed through distributors and the vast majority of activity of the business of its business is through contracts and tenders.

[49] Mr Hayes states that the 26 cm Foley catheter was discontinued by the US parent company in about 30 September 2021, which was before he commenced employment with the Respondent. The Respondent has no control over what its parent company does or does not manufacture. In 2023, the US parent company discontinued approximately 1600 products and in the preceding year, it discontinued approximately 2000 products globally. Products are typically discontinued by the US parent company when the product is towards the end of the product's life cycle. A decision to discontinue a product may be based on a combination of factors, including declining sales, declining profitability, increasing cost to manufacture, obsolescence due to changes in technology cover change in the market focus or a change in regulatory or licencing requirements.

[50] The Respondent has never sold or supplied products to the Appellant and has never had any direct relationship with the Appellant.

1. The Tribunal made the following relevant findings:

[59] We accept the evidence of the witnesses and note that there is no dispute between the parties about the essential facts leading to the complaint.

[60] Because of her disability, the Appellant requires the use of a medical device to assist her with draining her bladder. We accept that up until 2023, the Appellant was able successfully to source and use the 26 cm Foley catheter. We also accept that the Appellant has been unable to source this catheter since February 2023, that she has attempted to source alternative catheters since this time and that none of the catheters she has been able to source suit her requirements in the same way is the 26 cm Foley catheter. We accept that the Appellant has been disadvantaged by this in the sense that the alternative catheter, while shorter than the standard-length catheter, does not meet her preference and is not the 'best fit' for her. One of the concerns she has raised is that the Coloplast catheter does not have a suitable gauge diameter for her needs. We also accept that this issue has caused considerable frustration, anxiety and indeed distress for the Appellant because the need to have an effective suprapubic catheter is central to the Appellant's amenity and functioning. We accept that if a suprapubic catheter is too long, there may be the potential for kinking unless a suitable mechanism is found to loop the tube, otherwise the catheter lag bag may be visible or worse, have to sit on a foot plate.

[61] We find that the 26cm Foley catheter was manufactured by the Respondent's US parent company and its manufacture was discontinued in about September 2021.

[62] We find that this had an impact on the supply of the product globally and in Australia by at least February 2023. We also find that neither the US parent company nor the Respondent supply directly to consumers or individual end-users and they do not have an e- commerce platform from which consumers can purchase products. We accept that the US parent company made the decision for commercial reasons and that it has continued to supply a Foley catheter at a "standard" length, which is 40 cm.

[63] We find that the Respondent has never supplied product directly to the Appellant and distributes Becton Dickinson products through distributors and directly to hospitals, aged care facilities and other institutions. We accept the evidence of Mr Hayes that the Respondent's US parent does not propose to reintroduce the 26 cm Foley catheter for commercial reasons and that there would be a considerable cost in so doing. We also accept that the US parent company, rather than the Respondent as its Australian subsidiary, makes decisions about rationalising products that it considers are not viable or feasible so that it can develop new medical devices and technologies.

1. The Tribunal stated (at [81]) that having regard to the submissions of the parties and the material before the Tribunal, the issues for determination as threshold matters are:

(1) Did the Respondent provide goods to the Appellant? ("First Issue")

(2) If so, did the Respondent refuse to provide those goods to the Appellant or did the Respondent discriminate in the terms on which the Respondent provided the goods to the Appellant? ("Second Issue")

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

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

Whether the Respondent Provided Goods to the Appellant - First Issue

1. In addressing this issue the Tribunal reasoned as follows:

[83] The Respondent contends that the word "provide", as defined in the Macquarie Dictionary and referred to in Whiteoak at [157] (referring to State of New South Wales v Whiteoak [2014] NSWCATAP 99), means "to furnish or supply" or "to afford or yield". In Whiteoak the appeal panel further noted at [158]:

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

[84] In Winters (referring we add to Winters v Fogarty [2017] FCA 51) Bromberg J stated, when dealing with a strike out application in a discrimination case under s 24 of the Disability Discrimination Act 1992 (Cth), which is in similar terms to s 49M of the ADA, as follows:

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

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

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

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

[85] The Respondent submits that deriving a benefit from the supply of goods to distributors does not create a sufficiently direct causal nexus. This is too wide and, as observed by Blomberg J, disability discrimination should be "confined to protecting those persons who are the subject of the provision or potential provision in question". The Appellant is not the subject of the provision of goods but rather the Respondent's business customers are the subject of the provision. The Respondent therefore contends that it did not, in the relevant period, provide any goods to the Appellant, including the 26 cm Foley catheter.

1. Having referred to the decision of the High Court in Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349, relied upon by the Appellant, which the Tribunal distinguished, it found that the Respondent did not, at the relevant time, provide the medical equipment to the Appellant.

1. The Tribunal then next dealt with the question of whether the Respondent refused to provide goods to the Appellant or discriminate on the terms on which the goods were provided within the meaning of the relevant statutory provisions.
2. The Tribunal concluded that there was no refusal on the following reasoning:

[91] We also find, on the facts established, that the Respondent did not refuse to provide the 26 cm Foley catheter to the Appellant within the meaning of ss 33 and 49M of the ADA. This is because the notion of refusing to provide goods or services connotes that the party who refuses to provide has control over the good or service and is refusing to provide those goods or services. In this case, even assuming the 26 cm Foley catheter could be sourced by the Appellant directly from the Respondent, the Respondent could not provide the 26 cm Foley catheter because the product had been discontinued by its US parent company.

[92] In her submissions, the Appellant attributed conduct of the US parent company to the Respondent - she referred to them interchangeably. However, the distinction between the US parent company and its Australian subsidiary is both relevant and material. The Respondent is wholly owned and is therefore controlled by the US parent company, not the other way. The US parent is not within the jurisdiction and the Tribunal is not empowered to make any orders against it in any event. This does not quarantine the Respondent from compliance with Australian law, including the ADA, but in this case issues about the supply and manufacture of the discontinued product are outside its control.

[93] If, for instance, the 26cm Foley catheter was available to supply to consumers and the Respondent had a practice of dealing directly with individual end-users consumers and refused to provide the product to the Appellant, there may be some basis for examining the reasons for this and whether this conduct was discriminatory. This is not what happened in this case.

[94] We accept that the failure to choose not to manufacture, and therefore supply, helpful medical devices to potential users who would find that medical device very useful is frustrating for individual end-users with disability. In this case, the discontinuance of the manufacture of the 26 cm Foley catheter in 2021 has clearly engendered concerns by the applicant that the conduct of the US parent is unreasonable and demonstrates a lack of corporate responsibility by a major medical device supplier. A global medical supplier can make choices based on commercial decisions about whether it exploits a particular device or invention. This commercial decision rests with the owner of the product and would only be impacted if there was another regulatory regime which requires certain medical devices or inventions to be offered more generally to members of the public in Australia. The Appellant has raised this with the TGA, which may have some relevant regulatory remit, but this is not the role or purpose of the ADA.

1. Having determined the First and Second Issue in the negative the Tribunal then concluded (at [95]) that it followed that it did not accept that there had been a breach of ss 33 or 49M of the ADA by the Respondent. It also found, although it said it was not necessary to make such a determination, that there was no evidence that the reason for the decision to discontinue the supply of the medical equipment into the Australian market was based on the Appellant's sex or disability. The decision was purely commercial.

1. The Appellant's first ground of appeal is that the Tribunal erred by dismissing the complaint on the basis that the corporate decisions of the Respondent were lawful operational judgments. The Decision failed to apply anti-discrimination principles, particularly the reasonableness under the ADA.
2. By way of background to this Ground the Appellant in the Notice of Appeal set out the following:

In 2021, the US based parent company of the respondent (ie Australian company affiliate) made the strategic corporate decision (the decision), to "streamline our manufacturing portfolio" for the express purpose of addressing a domestic problem, the need to "reduce the storage and administrative burdens on hospitals" (see Annexure B, respondent submission dated 4/8/23).

As the decision to streamline the catheter product portfolio fell within the company's lawful operational discretion, neither the decision itself nor the domestic reasons behind the decision, were at issue in this case at first instance.

The issue was and remains now, for appeal purposes, that the parent company chose to standardise catheter products as the "sole means" of achieving a streamlined product portfolio, in its overseas headquarters. Standardisation has resulted in limited distribution into the Australian market. The limited distribution continues to disproportionately affect consumers in protected categories, such as women and individuals with disabilities, who rely on the products for daily living.

1. The Appellant then addressed specific comments at the Decision which can be summarised as follows:

(1) The absence of a causal nexus by reason of the finding that the Respondent did not "provide" the product is disputed as "recognised distributors" (from whom the Appellant previously purchased the catheters) are not "business customers" but are "agents".

(2) What is disputed, is that the term to "provide" is, on the facts, not the only term of relevance to the case. It is argued here that the terms "provide" and "distribute" need to be read together in order to put the constructed relationship between the Respondent's "recognised distributors" and "community end-user" into a case specific context.

(3) The nexus between the Appellant and the Respondent is a construction by the Respondent. The network of approved and recognised distributors operates to provide to the mutual benefit of all parties. The Respondent gains access to an otherwise, non-existent secondary market. Community end-users, including the Appellant, gain access to otherwise unobtainable products and the distributors themselves satisfy legitimate business interests.

(4) Simply stated, recognised distributors, operating as agents for the Respondent, provide, furnish, supply, afford, yield and distribute (as per the Tribunal's representation of Whiteoak at [157]), in the broadest of sense of each of the terms, the only means by which community end-users can purchase Respondent products. The relationship between the parties is one of mutual benefit, not of imposition.

1. The Appellant also raised as grounds the failure by the Tribunal to enquire into an agency arrangement between the Respondent and others, the misapplication of indirect discrimination principles under the ADA, and a denial of procedural fairness.
2. The Appellant argued that the Tribunal's failure to closely examine the commercial relationship(s) around the Respondent is a significant legal error that enabled the conclusion to be reached that no causal nexus exists between the Respondent and the Appellant. It was further argued that the Tribunal erred in reaching the conclusion that all decisions regarding supply are beyond the Respondent's control as local/domestic market supply decisions are capable of being made by the Respondent, but the extent of the capability "remains uncontested and unknown on available evidence".
3. It was then argued that the ADA does not require that an applicant prove the nature or extent of the commercial relationship between the parties in any case including the current case. The Appellant set out in her written reply submissions that in the absence of an express agency agreement being submitted into evidence, ostensible agency could be presumed, given that third parties could reasonably be expected to believe that the Respondent carries the authority of the parent company.
4. In response to the Respondent's arguments that the Tribunal correctly identified the "threshold issues" as being whether the Respondent "provided" or "refused to provide" goods as specified in the relevant statutory provisions, the Appellant argued that the Tribunal prematurely dismissed the discrimination claim without also fully engaging with either of the "objective reasonableness" of the requirement to use standardised catheters, or to consider the "disproportionate impact" on women or people with certain types of disabilities.
5. The Appellant contended that she was denied procedural fairness in that the Tribunal failed to fully test and consider issues on available evidence in respect of "the distributor v agency distinction" and the application of indirect discrimination principles. It was argued that the Tribunal had a duty to test the "factual presumption" regarding the Respondent's status (i.e. distributor v agency) including contractual arrangements to seek further relevant and logically capable evidence.
6. On the question of whether there had been a refusal by the Respondent to provide the equipment the Appellant addressed us by arguing that she was not aware of the discontinuance of the product in 2021 until January 2023. At that point she approached her usual suppliers and was told that they did not have the product and did not know why they could not supply the product (i.e. sell the product) to her. She had not been advised of the discontinuance of the product.
7. It was argued that the Respondent had set up a market through distributors but did not monitor or engage with its supplier, or with the Appellant, to advise her of the discontinuation and that she had to find an alternative product. It was not a case like going to a hardware shop.
8. The Appellant argued that she had a particular problem and the entities she was buying from were not aware of why they did not have the product to sell to the Appellant. The Appellant was dealing with a difficult complex supply chain issue and the Respondent did not take its responsibilities for alerting people like her that the product was being discontinued.
9. The Appellant also argued that the appeal raises significant accountability and liability issues with an international supply chain; the application of anti-discrimination law to medically essential goods; and distributor/agency relationships in the provision of accessible goods.
10. The Appellant complained that the Respondent had an obligation to be aware of what the intermediaries were doing and it made no effort to support that business model that had been set up. It had the obligation to ensure that the US decision did not put people like the Appellant on the spot.

1. The Appellant sought the following relief in the event that the Grounds of Appeal are made out:

1. The decision handed down by the Tribunal on 12/3/25 at first instance be re-examined in accordance with the issues raised above, particularly objective reasonableness, with a view to over-turning the original decision, in favour of the applicant; and

2. That in the event of a decision in favour of the applicant, that the respondent be ordered to:

a) establish a review mechanism between itself and its network of recognised distributors, for quality assurance purposes and to retain a degree of oversight of the secondary market;

b) develop equitable policies, practices and procedures to ensure that as its company motto suggests it will continue to "Advance the world of health" to all and not just to the "standard few".

1. In written and oral submissions the Respondent emphasised the findings of fact made by the Tribunal at [60] - [65] of the Decision.
2. In relation to the Appellant's argument for the need to have examined the commercial relationship which existed for the sale of the product in Australia, the Respondent drew attention to the evidence of Mr Hayes to the following effect:

(1) The Respondent is a subsidiary of the American parent company, a medical technology company listed on the New York Stock Exchange that manufactures medical products. The Respondent does not itself manufacture any products, but sells and supplies in Australia products manufactured by the American parent company.

(2) The Respondent does not sell any products to consumers or individual end-users such as the Appellant directly, does not have any e-commerce platform that would permit this to occur, and does not have any contractual relationship with such persons. The Respondent supplies the products to (a) distributors and (b) healthcare providers, including hospitals and aged care facilities.

(3) As to distributors, these are businesses that enter into an agreement with the Respondent to sell products to consumers and individual end-users. There are approximately 125 distributors in Australia, and these account for approximately 5% of the Respondent's revenue.

(4) Mr Hayes said, in his oral evidence, that the Respondent also sells to distributors such as Bright Sky and Independence Australia, being businesses from whom the Appellant purchased the products.

1. As to the question of "agency" the Respondent argued that the Appellant did not at first instance raise the argument that the distributors were "agents" and the Tribunal was not obliged to consider that question. Further, the Respondent's evidence did not establish an arrangement of agency as the Respondent sells and supplies medical devices to health care providers and distributors only and not to the public at large.
2. The Respondent then went on to address the Appellant's claimed errors in respect of indirect discrimination pointing to the need to establish unlawfulness by a refusal to provide the goods to a person who has established discrimination on the grounds of a disability as an essential element of liability.
3. In respect of the alleged want of procedural fairness, the Respondent argued that the Tribunal is not an investigative body and the Appellant had every opportunity at the hearing to submit evidence and cross examine witnesses in respect of the "key matters" raised by the Appellant.

1. This appeal is an internal appeal brought under s 80 of the CAT Act.
2. Such an appeal is not simply an opportunity for a losing party to rerun the case at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
3. The role of an Appeal Panel when determining an internal appeal is limited to remedying errors, if there are any, made by the Tribunal at first instance rather than to reconsider the matter afresh. As the Appeal Panel said in Brahmbhatt v Osorio [2023] NSWCATAP 188 at [28]:

Secondly, that it is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome: an appellant must demonstrate either than an error was made on a question of law or that there is a basis upon which leave to appeal should be granted.

1. As is made clear by s 80(2)(b) of the CAT Act the appealable grounds for an internal appeal are limited. An appeal lies as a right on a question of law for an appeal of this nature or, in respect of any other grounds, a party requires leave (that is, permission) from the Appeal Panel.
2. The Appeal Panel in Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30 at [21] - [23] stated the following principles concerning the identification of question of law for the purposes of internal appeals:

21. There are several important cases relevant to the construction of s 80 of the NCAT Act. These were recently referred to in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25].

22. The Appeal Panel there said, inter alia, that:

(1) Absent leave to appeal, the question of law is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Medical Council of New South Wales v Mooney [2024] NSWCA 180 (Mooney) at [97].

(2) The question of law should be articulated with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Kudrynski v Orange City Council [2024] NSWCA 33 at [48], Mooney at [97], Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [28].

(3) A question of law means a pure question of law: Wilson v Chan & Naylor Parramatta Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11].

(4) A "pure question of law" does not depend on facts not found: Orr v Cobar Management Pty Ltd [2020] NSWCCA 2020 at [48] and [109].

(5) A mixed question of fact and law is not a question of law: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWCA 734 at [39].

(6) An appeal is "on" any question of law: s 80(2) of the NCAT Act. The question of law must not be hypothetical or arid: Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90]; Australian Broadcasting tribunal v Bond (1990) 170 CLR 321 at 353-354; [1990] HCA 33.

(7) An appeal is against orders and not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34], Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.

23. Recently in Donohoe v Albulario [2025] NSWSC 9, Basten AJ identified that when a question of law arises as to whether proceedings were procedurally fair it may be appropriate and necessary, on appeal, to make findings about what occurred at the hearing. His Honour noted at [33] (footnotes omitted):

"To the extent that there is a fact/law dichotomy, the facts which are not to be reviewed by the appeal court dealing with a question of law are the facts relevant to the matter in dispute. There is a categorical distinction between the facts in dispute (what part of the building was completed?) and facts relating to the composition or conduct of the Tribunal."

1. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel at [84] stated the following as general principles derived from Tribunal cases for the granting of leave:

(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,

BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.

1. The Appellant carried the onus of proving that the conduct complained of by the Respondent (and no other party) is unlawful under the ADA: Wright v Commissioner of Police [2014] NSWCATAP 67 at [24].
2. Where a person has established discrimination by reason of an established disability, or on the grounds of sex, liability for such discrimination by the discriminator only arises if the conduct is unlawful. In this case, if there was discriminatory conduct, it is only rendered unlawful if the conduct also contravenes s 33 or s 49M of the ADA by a refusal by the person who provides goods, to provide the person discriminated against with those goods.
3. It is apparent that the Tribunal recognised this application of these sections and considered them as threshold issues. In other words, unless it was established on the evidence that the Respondent (the alleged discriminator), as the person who provides the identified goods, refused to provide the Appellant with the desired goods the complaints could not succeed.
4. Inherent in the approach taken by the Tribunal was an acceptance that a detailed analysis of whether the Appellant had been discriminated against on the grounds of sex or disability would only be required if the conduct of the Respondent contravened s 33 and s 49M of the ADA.

1. In our view, it is important to bear in mind the uncontested evidence and findings by the Tribunal. The Respondent's ability to "provide" the desired catheters was dependent upon the product being manufactured by the Respondent's US parent company. The product was manufactured and supplied to the Respondent by its parent company for sale in Australia until September 2021 when manufacture of the product in the US ceased. It was a commercial decision made by the US company.
2. As made clear by the Appellant in her background statement quoted above, the lawful operational decision made by the US parent company, in its discretion, was not at issue in this case at first instance.
3. The decision was not made by the Respondent. From September 2021, the goods (to use the language of the statutory provision) which the Appellant wished to purchase no longer existed for sale.
4. Some time after September 2021, in 2023, the Appellant approached her usual suppliers of the goods, a number of distributors who had been appointed by the Respondent to sell the particular catheters in Australia, to purchase more of the product. Those sellers no longer had stock available to sell to the Appellant.
5. The contractual relationship and terms upon which the Respondent and its appointed distributors operated were not in evidence before the Tribunal. What is clear, however, is that prior to September 2021 when the goods were still being manufactured, and available to be provided to persons in Australia for purchase, the goods were never provided to the Appellant by the Respondent but "provided" to the distributors by way of sale. The Appellant purchased the goods from the distributors who were not related corporations of the Respondent.
6. There is no identified error in the finding by the Tribunal (at [63]) that the Respondent has never provided or supplied the product directly to the Appellant.
7. Further, the Appellant has failed to demonstrate any question of law, or other error in the Tribunal's determination of the issues set out at [81] of the Decision.
8. In our view, the Tribunal correctly recognised that the scope of the provisions in s 33 and s 49M of the ADA requires a nexus between the provider and the person provided for.
9. The concept of refusal, in our view, involves an indication that the person is unwilling to do something which the person is able or capable of doing.
10. The ordinary meaning of the word "refuse" includes, for example, to decline to give or express a determination and not to do something (Macquarie Dictionary); or to say or convey by action that one will not give or grant a request made by a person (Australian Concise Oxford Dictionary).
11. Inherent in the concept of refusal, as the Tribunal found, is a level of control over the decision or outcome.
12. There existed no relevant nexus between the Appellant and the Respondent other than that she purchased from time to time the particular medical device manufactured by the US parent company and sold by the Respondent in Australia to distributors from which the Appellant purchased the product.
13. There was, in our view, no refusal by the Respondent to provide the Appellant with the goods. After September 2021, the goods no longer existed to be provided to anyone. After September 2021, the Respondent did not decline to do something it was capable of doing.
14. The Tribunal was, in our view, correct in concluding that at the relevant time the Respondent did not provide the catheters to the Appellant and the Respondent did not refuse to provide the catheters to the Appellant within the meaning of s 33 and s 49M of the ADA.
15. The Tribunal was prepared to assume (contrary to the evidence and in the Appellant's favour) that even if the catheters could be sourced by the Appellant from the Respondent, a wide interpretation of "provide", the Respondent could not provide the catheters because the product had been discontinued by the US parent company. An inability to provide the catheters was not a refusal to provide the goods by a person who provides the goods. This is to be contrasted with the position pre-September 2021 when the goods were being manufactured and readily provided for sale within the Australian market. The Respondent was then unable to provide the product to the distributors for sale, not by reason of refusal to supply the goods, but by reason of it no longer being manufactured by the US parent company.
16. Applying the Appellant's contentions to the facts, "the person who provides" the goods was in fact the distributors from whom she purchased the catheters whilst they were available for sale.
17. On the Appellant's arguments, it would be necessary to conclude that when the product was no longer available to be sold to her by those distributors they were refusing to provide the product to her.
18. There could not be said to be a refusal by those companies and the Appellant did not contend otherwise. The argument would, however, mean that the unavailability of goods by reasons, for example, of supply chain constraints renders regular suppliers liable under the ADA. The ADA does not create such liability.
19. However, the Appellant seeks to apply a completely different and unsustainable logic to the position of the Respondent.

1. The issues which the Appellant wishes to agitate in this appeal are beyond the reach of the ADA. An examination of the use of particular supply chains for the provision or sale of goods was not required for a determination of the Appellant's complaints where, on the evidence, the Appellant could not overcome the obstacles she faced in establishing that s 33 and s 49M of the ADA had been contravened.
2. As the Appellant's background submissions set out above demonstrates the Appellant takes issue with standardising catheter products by the US parent company, outside the Tribunal's jurisdiction, resulting in what she says is disproportionately affecting consumers in affected categories, such as women and individuals with disabilities, who rely on the products for daily living. Those are not matters the Tribunal was required to, or able to delve into on the evidence of this case.
3. We understand the challenge by the Appellant to the term "provide" requiring the need to read it with "distribute" in order to put the constructed relationship between the Respondent's "recognised distributors" and "community end-user" into a case specific context to mean that a broad view should be adopted in establishing the necessary nexus between the person making available the product in the Australian market and end-user.
4. Although it is not necessary in this case to explore that argument further because of the particular facts of this case we accept that what is necessary is to evaluate the substance of the arrangements, and not simply the form.
5. There is nothing to suggest that in this case "the supply chain" arrangements were in any way created so as to allow the Respondent to avoid liability under the ADA.

1. The Appellant appears to contend before us that the companies appointed by the Respondent to sell the desired catheters, and which they sold to Appellant, are to be treated as "agents" and also that the Tribunal failed to closely examine that relationship.
2. That argument must also fail.
3. The evidence made clear that the Respondent sold the products acquired from the US parent company to companies as distributors of the product in Australia. Those companies on-sold the product to the public. There was no evidence that the sale by the distributors was on behalf of, or as agent for, the Respondent. Describing the companies as distributors, or even as "agents", does not overcome the absence of the necessary nexus between the Respondent and the Appellant. It is not established that a further examination of the commercial relationships could lead to a different outcome where, regardless of the nature of that relationship, the unavailability of the product after September 2021 was the cause of the Appellant not being able to buy the product any longer. That outcome had nothing to do with the local/domestic market supply decisions made by the Respondent at any relevant time. There remained the insurmountable obstacle of proving a refusal to supply by the Respondent and, or, its "agents".
4. There is also no basis for presuming an ostensible agency relationship.
5. It has not been established by the Appellant that the local/domestic market supply chain decisions made by the Respondent for sale of the catheters in Australia for any relevant material way brought her complaints within the scope of the relevant legislation.

1. Once the Tribunal concluded that the First and Second Issues were answered in the negative there was no utility in examining what the Appellant described as anti-discrimination principles or the reasonableness test under the ADA.
2. Further, as we point out above the alleged failure to fully test and consider the issues of available evidence in respect of the distributor/agency distinction could make no difference to the outcome and was not required.
3. We recognise that a material denial of procedural fairness by the Tribunal at first instance may raise a question of law; FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127 at [83] - [84].
4. The claimed denial of procedural fairness in this case in our view is not arguable and does not in fact raise a question of law.
5. In our view, the Appellant has not established a pure question of law entitling her to appeal as of right.
6. Accordingly, the Appellant requires leave to pursue her appeal.
7. The Appellant has also not persuaded us that leave should be granted. None of the grounds raised satisfy the general principles which we set out above as summarised in Collins v Urban. Leave to appeal will be refused.

(3) If a party to the appeal wishes to make an application for costs, the following directions apply:

(a) the party applying for costs (the costs applicant) must, within 14 days after the publication of this decision, give the other party (the costs respondent) and the Registry any submissions and documents the costs applicant intends to rely on in relation to the application, including on the question as to whether costs should be fixed or assessed;

(b) the costs respondent must, within 14 days after receiving the submissions and documents of the costs applicant, give the costs applicant and the Registry any submissions and documents the costs respondent intends to rely on in response to the application for costs;

(c) the costs applicant must, within 7 days after receiving the submissions and documents of the costs respondent, give the costs respondent and the Registry any additional submissions and documents the costs applicant intends to rely on in response to the costs respondent's submissions and documents;

(d) the parties are to include, in their written submissions concerning the application for costs, their submissions about whether they consider that a hearing in relation to the application can be dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

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.