AB v GH Pty Ltd and Ors [2011] QCAT 403

CITATION: AB v GH Pty Ltd and Ors [2011] QCAT 403 PARTIES: AB v GH Pty Ltd CD EF APPLICATION NUMBER: ADL105-10 MATTER TYPE: Anti-discrimination matters HEARING DATE: 28 July 2011 HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 25 August 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Complaint is dismissed. 2. Publication is prohibited of any information which is likely to identify the names of any of the parties in this proceeding. CATCHWORDS: ANTI-DISCRIMINATION – where complaint based on race in the provision of services – where allegations lack substance – where early end to proceeding justified in interests of justice – where non publication necessary to prevent identification of parties APPEARANCES and REPRESENTATION (if any): APPLICANT: AB RESPONDENT: GH Pty Ltd, CD and EF represented by Sonya Black of Blake Dawson REASONS FOR DECISION [1] AB wanted to receive medical treatment for a sinus condition which was affecting his breathing and early on 9 March 2010 he attended a medical clinic situated in Brisbane City conducted by GH Pty Ltd. He was given an -- 1 of 7 -- 2 appointment for 4pm that day to consult CD who had an ownership interest in the clinic. [2] The consultation did not happen. AB complained that he had been refused medical services on 9 March 2010 and on two other specific occasions before 9 March 2010 because of his racial background as a black man who had come to Australia from Africa. [3] AB’s complaint, made against the operator of the medical clinic and two doctors working in the clinic, was accepted by the Anti-Discrimination Commission and later referred to this tribunal for determination. The clinic operator and the doctors denied their actions amounted to unlawful discrimination and applied to QCAT for an early end to the complaint. [4] At a hearing of their application to dismiss the complaint on 28 July 2011, the legal representatives for the clinic and the doctors relied on sections 47 and 48 of the Queensland Civil and Administrative Tribunal Act 2009. [5] For the reasons following, I am satisfied that the complaint must be brought to an early end. I have made an order dismissing the complaint. WHETHER THE COMPLAINT LACKS SUBSTANCE OR IS AN ABUSE OF PROCESS – SECTION 47 [6] Under section 47 of the Act, QCAT can dismiss a proceeding if it considers that the proceeding is lacking in substance or is otherwise an abuse of process. The complaint made by AB that he was subjected to conduct which contravened the Anti-Discrimination Act 1991 is a proceeding in this tribunal. [7] AB objected to the proceeding being dismissed. He filed written submissions opposing the dismissal and he took part at the hearing and added orally to his submissions. [8] In his written submissions, AB made a series of serious allegations against CD and EF. He alleged that CD: a) had not treated him in the same manner as CD dealt with his other patients; b) had refused to provide an urgent and necessary medical treatment when AB was suffering from chronic sinus disease; c) had lied to him and is a manipulative and deceitful liar who cannot be trusted; d) had appeared to be intoxicated with alcohol on more than six occasions when AB had consulted him; e) had dealt with him in an arrogant and ignorant fashion and had been non-professional; f) had deliberately caused confusion and misunderstandings between AB and the clinic’s administration staff; g) had failed to provide material evidence of his denials of discrimination; h) does not have any professional credibility; -- 2 of 7 -- 3 i) should not be allowed to continue practising in Queensland as he is a risk to patients and to Queenslanders in general. [9] AB alleged that EF followed in the footsteps of his superior, CD in making denials of discrimination. AB alleged that EF had requested another doctor to write a false referral to provide a false alibi and by doing so, had tried to cover up his wrongdoings. [10] The allegations made in his submissions were repeated by AB during the hearing and his allegations against CD of lies and intoxication were expressed in even more florid terms than were in his written submissions. AB had not at any stage of the proceeding provided any objective evidence to support any of the allegations he had made. [11] CD, EF and the corporate owner of the clinic denied all the allegations made against them. They submitted that the allegations were untrue and unsupportable. Allegations made by AB [12] Through their legal representative the respondents analysed for the tribunal the various factual allegations made by AB from the time of his original complaint to the Commission until the hearing of the dismissal application. That analysis revealed that the original complaint, completed by AB on the complaint form of the Commission, was dated 9 March 2010 and was lodged with the Commission on 10 March 2010. It purports to be a contemporaneous account of what occurred on 9 March 2010. [13] AB had stated that on 9 March 2010 he went to the clinic and was told by the receptionist that the owner of the clinic barred him from consulting any of the doctors except himself. AB stated that he asked for a reason but no explanation was forthcoming. AB stated that on a previous occasion he had been excluded from consulting other doctors at the clinic for no particular reason. [14] AB stated that he felt insulted and discriminated against on the basis of his racial background and his religious beliefs as he could not think of any other reason why the owner of the clinic excluded him other than because of a discriminatory act by the owner and his associates. [15] In a supplementary document dated 21 June 2010, AB gave a different account of what had happened on 9 March 2010. He alleged that CD had said: “You are a fucking niger. This practice does not treat nigers.” From what he said at the hearing, AB had meant to use the term “nigger” in his supplementary complaint. He stated that CD had refused to see him unless he apologised to EF, referring to an incident set out in the next paragraph. [16] In his supplementary complaint, he also identified two earlier occasions when he alleged he had been subjected to discrimination. He alleged that in mid February 2010 he had consulted EF and he had asked for a referral to a specialist for his sinus infection. He alleged that EF said that it would be a waste of medical resources and that AB should get the treatment in -- 3 of 7 -- 4 Africa. He alleges that EF called him a “black shit” and asked AB to leave his office. [17] He alleges that in early March 2010 he telephoned the clinic to make an appointment and he was told by the receptionist that he had been barred from seeing any doctor except CD. As he could not get an appointment with CD until 5pm, he was forced to go to the emergency department of the Mater Hospital for treatment due to the seriousness of his condition. [18] In his contentions filed in QCAT, AB set out the allegations against EF in the same terms as the allegations in the supplementary complaint but added an assertion that he had sent a written complaint to CD about this incident and he had left telephone messages which had been ignored by CD. [19] In his contentions AB gave an expanded description of the incident which he alleges took place in early March 2010. He stated that his nose was bleeding, he experienced dizziness, tiredness and he was vomiting. He stated that he was told by the receptionist that he was barred from seeing any doctor except CD and he got the impression that CD had instructed other doctors not to see him. [20] AB stated that he was forced to go to the emergency department of the Mater Hospital for treatment. He stated that the staff at the hospital had expressed shock and disbelief that a general practitioner had refused to provide adequate medical care for his condition. He stated that they had encouraged him to file the complaint in response to the treatment he had received. [21] As to the third incident that is alleged to have occurred on 9 March 2010 AB in his contentions stated that he made an appointment to see CD at 4pm that day. AB stated that he arrived at 4pm and was kept waiting while CD saw all other patients before him. AB stated that CD refused to see him unless he apologised to EF. AB then repeated the allegation about insulting words used by CD. AB added a new allegation that he could smell alcohol on CD’s breath and he suspected that CD was intoxicated. [22] In a statutory declaration dated 30 May 2011 and filed by AB as his evidence in the proceeding, he declared that both doctors had lied and should not be trusted. AB described both doctors as the biggest liars in the world. It is clear that AB’s versions of the three incidents involved in his complaint have become more sensational with each re-telling. Response to allegations [23] The clinic operator and CD and EF have responded to each of the incidents. As to the incident alleged to have occurred in early February 2010, EF stated that both the clinic records and Medicare records reveal that AB did not consult him in February 2010. EF stated that the records reveal that AB had consulted him on only four occasions in total during 2008 and 2009 with the last consultation being on 2 September 2009. AB produced no independent records to contradict the assertion made by EF or to prove that he had consulted EF in early February 2010. -- 4 of 7 -- 5 [24] AB has not contended that he might have been mistaken about the date of the consultation with EF but has expressly asserted that EF has lied in his denial of having a consultation with AB in February 2010. The claim and the response cannot be reconciled on the oral evidence of the parties. [25] Without some objective evidence, an inference cannot be drawn in favour of the version put by AB. AB has conceded that he has no objective evidence to support his claim. On the other hand, EF would have the means of producing objective evidence from Medicare to support his denial that any consultation took place with AB in early February 2010. [26] I am satisfied that AB has no basis on which he can rely to satisfy QCAT that an inference in his favour would be drawn that he consulted EF in early February 2010. I am satisfied that this part of his complaint lacks substance. [27] As to the second part of the complaint, I have noted a letter sent by the Health Quality and Complaints Commission to CD dated 10 March 2011. That letter reveals that AB had repeated his complaint to that Commission about alleged non treatment by CD in early March 2010. The letter reveals the complaint was investigated and during the investigation the records of the Mater Adult Hospital about AB were obtained for the period 2009 to 2010. [28] The Hospital has no record of AB attending the hospital at any time in early March 2010 or on 9 March 2010. There was no record of AB being admitted to the hospital in 2010 with only one recorded emergency department attendance by AB on 14 April 2010. [29] AB has not contended that he might have mistakenly attributed the date of this incident as early March when it should have been 14 April 2010. In any event, his original complaint dated 9 March 2010 refers to the incident of refusal of treatment as having happened prior to 9 March 2010. He has not contended that he might have mistaken the hospital he had attended but to the contrary he has persisted in his claim that it was the Mater Hospital. His claim cannot be reconciled with the objective evidence from the Health Quality and Complaints Commission and from the records of the Mater Hospital. [30] I am satisfied that AB has no basis on which he can rely to satisfy QCAT that an inference in his favour would be drawn that he was refused treatment in early March 2010 resulting in his having to attend the emergency department of the Mater Hospital for treatment. I am satisfied that this part of his complaint lacks substance. [31] As to the third part of the complaint, his contemporaneous account on the day of the incident stated that AB had asked for an explanation as to why he had been barred from seeing doctors other than CD. AB expressly stated that no explanation was given to him and that he had formed the view, independently of any explanation by CD, that he had been subjected to racial discrimination. [32] In his supplementary complaint written some three months later, AB sets out detailed conversation that he alleges took place between CD and him. In that conversation AB alleges that he was called a “nigger” and he -- 5 of 7 -- 6 alleges that he had been provided with the explanation that the practice does not treat “niggers”. [33] It is not credible that, if this clear allegation of racial discrimination had taken place on 9 March 2010, AB would have failed to include details in his contemporaneous account of the incident he wrote out on 9 March 2010. To the contrary, he expressly asserted that he had not been given an explanation and he was left to infer this belief of discriminatory treatment. [34] AB has produced no objective evidence to support his complaint and he has not been able to obtain support from any person who was present in the clinic on 9 March 2010. He has not provided any explanation for the inconsistencies between his original complaint and his supplementary complaint of the incident on 9 March 2010. He has persisted in QCAT with the allegations of racial name calling and he appears to have intended to present his case on the sole basis that the denials by CD were lies. [35] There is another aspect of his allegations about the incident of 9 March 2010 which is impossible to reconcile with the objective evidence. AB alleges that CD had demanded that AB apologise to EF before CD would provide treatment to him on 9 March 2010. This allegation is inherently impossible if it was established that EF had not seen AB for over six months before 9 March 2010. As found in paragraph 25, I am satisfied that EF would be able to produce objective evidence that he had not treated AB since 2 September 2009. [36] AB has not conceded that he might have been mistaken about the conversation with CD on 9 March 2010 as set out in his contentions filed in QCAT. His version in his contentions is not able to be reconciled with his first complaint or with the objective evidence that is able to be produced. [37] I am satisfied that AB has no basis on which he can rely to satisfy QCAT that an inference in his favour would be drawn that he was refused treatment on 9 March 2010 because of his race. The complaint set out in his contentions is not credible and is almost totally inconsistent with the terms of his contemporaneous account. I am satisfied that this part of his complaint lacks substance. Should the complaint be dismissed? [38] It is a very serious matter for QCAT to dismiss a complaint about unlawful discrimination without allowing a hearing of that complaint to take place. Dismissal would deprive AB of the opportunity to have a hearing of his evidence and a determination made on the merits of his complaint which is based on allegations of the contravention of his human rights. [39] However QCAT is required to deal with matters in a way that is fair, just, economical and quick.1 I have been satisfied that the complaint made by AB lacks substance. I am satisfied that it would amount to an injustice to the parties and an abuse of process to require the parties to incur the cost 1 Section 3(b) of the Queensland Civil and Administrative Tribunal Act 2009. -- 6 of 7 -- 7 and effort in proceeding to a hearing of the complaint when that complaint has been found to lack substance. [40] I am satisfied that the proper course is to dismiss the complaint to bring an early end to the proceedings under section 47 of the Queensland Civil and Administrative Tribunal Act 2009. In doing so, it has not been necessary to consider dismissal under section 48 of that Act. However it is noted that AB had failed to comply with the direction made by the tribunal on 12 April 2011 to file a statutory declaration containing all the evidence on which he intended to rely at the hearing by 31 May 2011. [41] He gave no credible explanation for non compliance and expressed the intention of just turning up at the final hearing with his evidence despite the directions of the tribunal that no party would be permitted to present evidence at the final hearing that was not contained in their written filed statutory declarations. The other parties would have had a virtually impossible task of preparing for hearing when there was no evidence from AB and when the versions of his complaint had varied significantly over time. [42] I dismiss the complaint under section 47 of the Queensland Civil and Administrative Tribunal Act 2009. [43] The respondents had asked for a non publication order about the statutory declaration of AB dated 30 May 2011. These reasons for decision will be published and the allegations made by AB about CD being intoxicated while treating patients and acting in a non professional manner are capable of injuring his reputation. The allegations of distasteful language used by both CD and EF would tend to injure their reputation, despite being the allegations having been found to lack substance. [44] I find that a non publication order is necessary in the interests of justice to avoid injury to the professional reputations of CD and EF who continue to practise in Brisbane City. I direct that publication is prohibited of any information which is likely to identify the names of any of the parties in this proceeding. -- 7 of 7 --