El Kassir v Benjamin [2012] NSWADT 70

El Kassir v Benjamin [2012] NSWADT 70

Leave was refused because the complaint was misconceived and lacked substance: although an assumed past diagnosis of schizophrenia could fall within the statutory definition of disability and the alleged conduct could relate to the terms and conditions of providing a service, the respondent's professional assessment of the applicant's mental health and suitability to be a police officer did not constitute discrimination on the ground of that assessment, and allegations of incompetence, unprofessionalism or misguided reasoning would not disclose a breach of the Anti-Discrimination Act 1977.

Jurisdiction
Australia
Judgment Date
28 February 2012
Procedural Posture
Complaint of Disability Discrimination in the Provision of Services / Application for Leave Under S 96 of the Anti Discrimination Act 1977 After the President Declined the Complaint as Lacking in Substance
Outcome
Leave for the applicant's complaint of disability discrimination to proceed is refused.
Legal Topics
['disability Discrimination' 'provision of Services' 'direct Discrimination' 'leave to Proceed' 'complaint Lacking in Substance' 'psychiatric Assessment']
['anti Discrimination Law' 'administrative Law'] ['disability Discrimination' 'provision of Services' 'direct Discrimination' 'leave to Proceed' 'complaint Lacking in Substance' 'psychiatric Assessment']

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Procedural Posture

Complaint of Disability Discrimination in the Provision of Services / Application for Leave Under S 96 of the Anti Discrimination Act 1977 After the President Declined the Complaint as Lacking in Substance

Legal Issues

  1. 1 ["Whether leave should be granted for the applicant's disability discrimination complaint to proceed." 'Whether the complaint disclosed direct disability discrimination under s 49M of the Anti-Discrimination Act 1977 in the provision of services by a medical practitioner.' 'Whether the alleged unfavourable assessment and assumptions by the respondent amounted to less favourable treatment because of disability.']

Ratio Decidendi

Leave was refused because the complaint was misconceived and lacked substance: although an assumed past diagnosis of schizophrenia could fall within the statutory definition of disability and the alleged conduct could relate to the terms and conditions of providing a service, the respondent's professional assessment of the applicant's mental health and suitability to be a police officer did not constitute discrimination on the ground of that assessment, and allegations of incompetence, unprofessionalism or misguided reasoning would not disclose a breach of the Anti-Discrimination Act 1977.

Court Disposition

Leave for the applicant's complaint of disability discrimination to proceed is refused.

Orders

  • ["Leave for the applicant's complaint of disability discrimination to proceed is refused."]