Kitoko v Sydney Local Health District [2017] NSWCATAD 209

Kitoko v Sydney Local Health District [2017] NSWCATAD 209

The complaint was dismissed because, even taking Mr Kitoko's material at its highest, there was no evidence that Dr Lord had the nerve conduction study report available on 16 October 2012 or declined a request to provide it to Mr Kitoko or his GP; the material did not show that Dr Lord's medical opinion lacked a basis or was not genuinely held; and the alleged single racist comment, while denied, did not constitute a refusal to provide services or discrimination in the terms on which medical services were provided under s 19 of the Anti-Discrimination Act 1977 (NSW). The complaint therefore lacked substance and did not disclose a contravention of the Act.

Jurisdiction
Australia
Judgment Date
27 June 2017
Procedural Posture
Complaint of Race Discrimination in Provision of Services Under the Anti Discrimination Act 1977 (nsw) / Respondent's Application to Dismiss the Complaint Under S 102 of the Anti Discrimination Act 1977 (nsw)
Outcome
Complaint dismissed.
Legal Topics
['race Discrimination' 'provision of Goods and Services' 'dismissal of Complaint Lacking in Substance' 'meaning of Refusing to Provide' 'scope of Terms on Which Services Are Provided']
['anti Discrimination Law' 'administrative Law' 'practice and Procedure' 'statutory Interpretation'] ['race Discrimination' 'provision of Goods and Services' 'dismissal of Complaint Lacking in Substance' 'meaning of Refusing to Provide' 'scope of Terms on Which Services Are Provided']

Case Brief

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Procedural Posture

Complaint of Race Discrimination in Provision of Services Under the Anti Discrimination Act 1977 (nsw) / Respondent's Application to Dismiss the Complaint Under S 102 of the Anti Discrimination Act 1977 (nsw)

Legal Issues

  1. 1 ['Whether the complaint was frivolous, vexatious, misconceived or lacking in substance, or did not disclose a contravention of the Anti-Discrimination Act 1977 (NSW).' 'Whether Dr Lord or the Sydney Local Health District refused to provide Mr Kitoko with a copy of the report or the true results of the nerve conduction study conducted on 16 October 2012.' 'Whether the phrase "refusing to provide" in s 19(1)(a) of the Anti-Discrimination Act 1977 (NSW) includes a failure to provide a report without a request.' 'Whether the alleged racist comment by Dr Lord could amount to discrimination in the terms on which medical services were provided under s 19(b) of the Anti-Discrimination Act 1977 (NSW).']

Ratio Decidendi

The complaint was dismissed because, even taking Mr Kitoko's material at its highest, there was no evidence that Dr Lord had the nerve conduction study report available on 16 October 2012 or declined a request to provide it to Mr Kitoko or his GP; the material did not show that Dr Lord's medical opinion lacked a basis or was not genuinely held; and the alleged single racist comment, while denied, did not constitute a refusal to provide services or discrimination in the terms on which medical services were provided under s 19 of the Anti-Discrimination Act 1977 (NSW). The complaint therefore lacked substance and did not disclose a contravention of the Act.

Court Disposition

Complaint dismissed.

Orders

  • ['Complaint dismissed.']