Federal Court of Australia

Ponraj v Wycombe Services Pty Ltd [2023] FCA 118

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s claim is dismissed.

2.    The respondent is entitled to judgment on the cross-claim in the sum of $574,248.58 plus interest up to judgment pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) in an amount to be assessed.

3.    The assessment of interest and all consequential orders, including as to costs, is adjourned for further determination.

4.    The parties must file and serve submissions as to all consequential orders including interest and costs within 14 days of the making of these orders, limited to 3 pages, minimum 12 point typeface with one and one half line spacing.

5.    Subject to any further order of the Court, all applications for consequential orders will be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCELWAINE J:

INTRODUCTION

1    Dr Dhandapani Ponraj is a general practitioner who in 2019 commenced providing medical services from Our Medical Home Williams Landing (the Practice), which is operated by Wycombe Services Pty Ltd in conjunction with the related corporation Cornerstone Health Pty Ltd. Although each is named as a respondent to the originating application filed on 13 November 2020, it is common ground that the only contracting party and putative discriminator is Wycombe (the respondent). The respondent is a medical services provider which operates medical clinics across Australia.

2    In 2020, Dr Ponraj developed discomfort in his left ankle which limited his ability to walk and bear weight on it. I will refer to this as the ankle issue as Dr Ponraj’s preferred nomenclature. On 28 April 2020, Dr Ponraj informed the respondent by email of the ankle issue and requested to work remotely from home providing telehealth consultations, a service which had recently been expanded by the Department of Health and Aged Care in response to the COVID-19 pandemic. The refusal of this request, and refusal on 21 May 2020 of a subsequent request, forms the basis of the discrimination claim that he asserts in this proceeding.

3    Dr Ponraj first complained of unlawful discrimination to the Australian Human Rights Commission pursuant to the Australian Human Rights Commission Act 1986 (Cth). On 17 September 2020, the claim was terminated pursuant to s 46PH(1B)(b) by a delegate of the President on the ground that there was no reasonable prospect of the claim being settled by conciliation. In various ways, Dr Ponraj contended that he had suffered direct and indirect discrimination in the workplace contrary to the Disability Discrimination Act 1992 (the Act).

4    Dr Ponraj was contracted to provide medical services as a general practitioner at the Practice. In this Court, he contends that the respondent unlawfully discriminated against him directly or indirectly on the ground of disability contrary to s 15 of the Act by denying or limiting access to a benefit associated with employment, being the ability to consult with patients remotely from his home during the period of his temporary disability. He claims substantial damages for economic loss, hurt and humiliation. The respondent accepts that the ankle issue was a disability within the meaning of the Act, but denies unlawful discrimination.

5    The respondent also pleads by way of cross-claim breach of the practitioner services agreement entered with Dr Ponraj on 20 December 2018 (the Agreement) and claims damages. As pleaded and ultimately maintained, the quantum of this claim is $574,246.58 being the calculated termination amount pursuant to the Agreement. It also seeks interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth).

6    The proceeding was heard between 12 and 14 September 2022. Dr Ponraj appeared in person as a self-represented litigant. He is an obviously highly intelligent individual although, as is the case with many self-represented litigants, at times his identification of the facts relevant to the particular issues and the legal principles applicable thereto lacked clarity. Fortunately, however, his pleadings and affidavits were drafted by legal practitioners who were earlier engaged. I am grateful for the efficient manner in which counsel for the respondent, Ms Alderson conducted the case, entirely in accordance with the overarching purpose and without undue technicality.

7    Part way through the hearing, on 14 September 2022, I ordered pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) that the question of liability on the claim of Dr Ponraj be determined first and separately from determination of any damages. I did so, somewhat unusually after the case for each party had closed, when Dr Ponraj attempted to tender another document being a medical report dated 22 December 2021 from a consultant psychiatrist who, based on his examination of Dr Ponraj, expressed various opinions as to his psychological state and the causal link to the impugned conduct of the respondent. Receipt of this report was objected to primarily on the ground that its author was not produced for cross-examination, despite the failure to give notice to that effect when the report was served upon the solicitors for the respondent on 23 December 2021.

8    The debate which followed brought into sharp focus another matter, being the framing of the claim for damages as set out in the applicant’s Amended Statement of Claim dated 7 May 2021 (the claim). In broad terms, this document claims damages for lost earnings, general damages and aggravated damages. The claim for general damages is expressed broadly by reference to “hurt, distress and humiliation”, but no distinct claim is pleaded for psychological harm or psychiatric disorder. Further, Dr Ponraj gave very little attention in his evidence to his claim for damages as pleaded which included the familiar phrase “further particulars of loss may be provided prior to the hearing”. They were not. I expressed the view that, in accordance with my obligation to ensure that the trial is fairly conducted, particularly where Dr Ponraj is self-represented, I should in the circumstances make an order to the effect that the question of liability be determined first and separately from all questions of damages. Ms Alderson and Dr Ponraj were agreed that I should so order and I did with their consent.

9    For the detailed reasons that follow, I have concluded that Dr Ponraj’s claim fails and the respondent’s cross-claim succeeds. I adjourn for further submissions, or hearing if necessary, the quantification of interest on the cross-claim and all consequential orders, including as to costs.

The facts

10    There is little dispute between the parties as to the facts, save as to two telephone conversations between Dr Ponraj and representatives of the respondent. Pursuant to various case management orders, the parties rely on affidavits that set out the evidence-in-chief to be relied upon together with a court book of agreed documents that became an exhibit. The affidavits relied upon by Dr Ponraj were made on 3 December 2021 and 9 March 2022 respectively. The respondent relies on affidavits from Ms June Wong made on 9 February 2022 and 5 April 2022, Ms Julia Agius made on 9 February 2022, Dr John Crimmins made on 9 February 2022 and 6 April 2022 and Mr Oliver Young made on 9 February 2022 and 6 April 2022. The affidavits set out a comprehensive history of the interactions of the parties. The affidavits were adopted as the evidence-in-chief of each witness, with limited evidentiary objection from Ms Alderson. Dr Ponraj read his affidavits and was cross-examined. Dr Crimmins, Ms Wong (appearing remotely), Ms Agius and Mr Young appeared and were cross-examined by Dr Ponraj.

11    On 20 December 2018, Dr Ponraj entered into the Agreement, later amended by a deed dated 11 June 2019, pursuant to which he agreed to provide medical services from the Practice for a period of 6 years.

12    Under the Agreement, Dr Ponraj agreed, inter alia, to provide medical services exclusively from the Practice; not to be absent for more than five weeks of each calendar year and to give advance notice of intended absence. In consideration for the provision of services, Dr Ponraj was entitled to receive a lump sum amount, payable by instalments. The total amount payable was $800,000 of which $50,000 was payable on execution and $750,000 was payable within 7 days of 1 July 2019. These amounts were paid and, for ease of reference, I have excluded the GST. Further, and also on 20 December 2018, the respondent and Dr Ponraj entered into a loan agreement whereby the respondent lent $300,000 to Dr Ponraj, conditional upon execution of the Agreement and which required repayment upon receipt of the $750,000 payment. The loan was advanced and the repayment was made by way of deduction from the $750,000 payment. When allowance is made for GST and interest on the loan, the ultimate amount that was paid pursuant to the Agreement was $517,500. Dr Ponraj does not dispute this calculation.

13    In April 2020, the ankle issue first manifested. It caused Dr Ponraj discomfort. It is the genesis of the discrimination claims and it is important to understand the sequence of events that followed. On 28 April 2020 at 12.53 pm, Dr Ponraj emailed Ms Wong as follows:

Hi June

I have some issues with ankle that I might have to rest for 6 to 8 weeks to start with and review in 8 weeks.

I would like to know the options of remote consult from home or try 1 or 2 days a week after 1 week has been advised complete non-weight bearing boot.

It will be helpful if I know the possibility of remote consult.

14    Dr Ponraj did not attend the Practice on 28 or 29 April 2020. Ms Wong states that on 29 April, she telephoned Dr Ponraj at approximately 5 pm. Her version of that discussion in her evidence-in-chief is:

On 29 April 2020 at approximately 5pm, I called Dr Ponraj to see how he was feeling. We had a telephone conversation which included words to the following effect:

Me:         Hi Dr Ponraj I am calling to see how you are?

Dr Ponraj:     I have an ortho consult coming up but it looks like I will be out for at least 8 weeks maybe longer. I would like to get remote consults as soon as possible so that I can work from home.

Me:     Thanks for the update. Unfortunately, you are not feeling well, why don’t you take the time to recover? I have concerns that remote access will compromise the integrity of the IT system and privacy issues and confidentiality. We can certainly make any adjustments that will make work easier for you, for example we could move you closer to the treatment room and the staff can support you in the Practice. However, there is no pressure for you to return if you do not feel up to it. You must look after yourself. Please focus on your health and get better.

15    Dr Ponraj did not mention this discussion in his first affidavit. In his second affidavit, and in direct response to this evidence, he states:

I recall this telephone discussion with June Wong however, I deny any suggestion that I told June Wong or there was any comment that I was “not feeling well”. Further, the Respondent’s substantive excuse for not letting me consult from home whilst my foot impacted my mobility was that it would compromise the IT system and create privacy and confidentiality issues with patient data. However, that does not prevent them granting other doctors the ability to consult from home and access that data. Obviously, the alleged concerns were not sufficient to prevent Cornerstone from allowing others to consult from home and access patient data.

16    That evidence of Dr Ponraj is obviously unsatisfactory. He makes no attempt to set out his recollection of the words, or the substance, used by the participants. Instead, in addition to his general denial of one aspect of the evidence of Ms Wong, this paragraph is an argument in support of the case that Dr Ponraj seeks to make out. I make that specific observation as to illustrate my overall impression of the evidence given by Dr Ponraj. It is not an isolated example. I find Dr Ponraj honestly believed that the evidence he gave was truthful. However, where his evidence is not consistent with the contemporaneous documents or the recollection of other witnesses, I have not preferred it. It is clear from having listened carefully to the entirety of the evidence of Dr Ponraj, that he is imbued with a sense of grievance highlighted by arguments that he sought to convey in the form of evidence, usually by reference to conclusions that he had formed about the conduct of the respondent. A further example is the cross-examination of Dr Ponraj in relation to this discussion and an email subsequently sent by Ms Wong to Dr Ponraj on 29 April 2020. Her email reads:

Dear Dr Ponraj,

Thank you for your email & updating me on your health concerns.

As per our phone conversation this afternoon, I thank you for understanding that the option of remote control from home is not preferable as this may compromise our IT Integrity.

The option of relocating to a consult room closer to the treatment room can be arranged so please do not hesitate to discuss with Julia Agius or myself when required.

I wish you a speedy recovery and do not hesitate to contact me for any further concerns.

17    In cross-examination, the attention of Dr Ponraj was drawn to the email and the evidence was:

And it’s true, isn’t it, that June Wong actually called you on that day following ---? ---She might have called, but the content of the call was not correct as she mention on the email.

Okay. I will put ---? ---She said, “There’s something I need” - - -

I will give you an opportunity, Doctor. I will put that to you now? ---Not - - -

Give you an opportunity to say what you want to say about that phone call? ---Exactly. Yes. Sure.

Okay. I’m just asking you just – just provide by context – if we look at the email? ---Yes.

She says:

    Thank you, Dr Ponraj.

And then in the second sentence:

    As per our phone conversation this afternoon - - -

?---I think that’s where the problem. This is the first of it. You know, you can see quite a few phone conversation exemption from Ms June Wong and other people the same way. So that’s why I’m just recreating the fact – the phone conversation and by – through emails always something there as in what they want express.

Okay. And when you were – at this stage of your injury, were you in a – how was your pain level and your level of stress in respect of the injury at this time? ---Fine. At this time, as long as I was comfortable, I don’t have problems. I wasn’t taking any medication. I was not in pain.

Okay. So you weren’t – did you take any medication at any time? ---Not at that point of time.

Okay. In respect of the conversation that you had with Ms Wong, she called up to just ask how you were, and she was concerned about you; is that correct?---She call me. I agree; she call me. The content and concerns didn’t appear to be as mentioned on the email.

So, Mr Ponraj, you told her that it was looking about eight weeks or longer that you may be out?---Yes.

And you didn’t give her any further information about the injury? ---I didn’t have any further information myself, so that’s what I had.

That’s all you had? ---That’s right.

So that’s all you had? ---Yes.

And during that conversation she told you that you wouldn’t be granted remote access and that there were concerns with the IT systems? ---Nothing of the conversation ever happened, unfortunately.

So you deny ---? ---Absolutely.

You deny that happened? ---Yes, 100 per cent.

Are you sure she never told you in the telephone call ---? ---I’m fairly certain, 100 per cent.

Did you discuss remote access in the telephone call? ---I did – no. She didn’t confirm the remote – she didn’t discuss about the remote access on the phone call at all.

Yes. Did she say to you – I will withdraw that. She said to you, didn’t she, that she would make adjustments to make your return to work easier when you were able to return? ---No. That’s what I’m saying.

You disagree? ---The whole concern was – like, I think, when I received the email, I was in shock. You know, the – the content of the email was not as – as she’s talking.

Okay. So if we go back to that email, you say you were in shock when you saw the email, and that was because she said:

    Thank you for understanding the option of remote access.

?---Exactly, yes, because ---

And you say that was never ever discussed? ---Exactly. So if – if that was the case, there’s no question of asking – asking the remote access again. So – so this is like – as you – like, I’ve accepted one thing and then I’m complaining again. So it’s, you know, truly very disproportionate, and then, like, relying on phone conversation for – for more factual things is not fair.

Did you raise any of those concerns that you’re telling the court now with Ms Wong after she sent you that email? Did you – is there anywhere where you emailed back and said, “Sorry, Ms Wong. You misunderstood the phone call. That’s not what occurred”? You didn’t say that? ---No. No, I didn’t want to because I – I felt – I thought, like, if – she wasn’t very comfortable at the time, so – and then I thought, “Okay. Let me finish with the orthopaedic consult the next day. I will email her again.”

Okay? ---So I didn’t rush back and email again, you know, why she’s doing it. 

18    I accept the evidence of Ms Wong as to the content of the telephone discussion of 29 April 2020 in preference to the evidence of Dr Ponraj. Ms Wong set out her recollection in her evidence-in-chief and carefully, and to the best of her recollection, set out the effect of the words spoken by each. Dr Ponraj did not coherently challenge her recollection in cross-examination. Her recall is consistent with the email sent by her later in the day. In contrast, the recall of Dr Ponraj is somewhat vague and is infected by grievance and argumentative responses to the questions put in cross-examination which, as illustrated in the extract above, does not assist me in making findings of fact consistent with his version of the events.

19    In accordance with the evidence of Ms Wong, I find that the remote access request was discussed during the telephone discussion with Dr Ponraj on 29 April 2020 and was denied for two reasons. One, the belief of Ms Wong that remote access may compromise the respondent’s IT systems and the other, that Dr Ponraj should take time away from the Practice to recover from the ankle issue. In his claim, Dr Ponraj labels his request of 29 April 2020 to be permitted to work from home and consult remotely as the “first request” which he then pleads was refused pursuant to the email of 29 April 2020 and which is labelled as the “first refusal”. I am content to employ those labels in these reasons.

20    Dr Ponraj remained away from the Practice until 18 May 2020.

21    Following consultation with an orthopaedic surgeon, Dr Ponraj sent an email to Ms Wong on 4 May 2020 titled “remote consult” as follows:

Hi June

Further to my ortho consult this am I am unable to attend the clinic for the next 8 weeks likely longer up to 6 or 8 months.

If you could reconsider remote consult that will be helpful. I would like this (my medical reasons) to remain confidential.

22    This is pleaded as the “second request”. Dr Ponraj subsequently received on 13 May 2020 a written report from an orthopaedic surgeon, Mr Curry, dated 4 May 2020. But he did not provide a copy of it to the respondent in a timely way. Ms Wong states that the first occasion on which she became aware of the existence of this report was upon reading the first affidavit of Dr Ponraj. There is other evidence to the effect that a copy was attached to the complaint lodged by Dr Ponraj with the Australian Human Rights Commission on 19 May 2020 and which was forwarded to the respondent on 15 June 2020. Ms Wong was not challenged on her evidence. Ultimately, I do not find it necessary to resolve this factual dispute beyond finding that a copy was not provided to the respondent in the relevant period which is from 4 to 21 May 2020. The report states, inter alia, the opinion of Mr Curry that a CAM boot (also known as a Moon Boot) be worn and that for four weeks, weight should not be borne by the left ankle. After that four week period, progressive weight-bearing was recommended whilst wearing the CAM boot for a further period of eight weeks. Mr Curry then states:

I have explained to him that he should work from home whilst non weightbearing. He could return to work once weightbearing in the boot. He would benefit from using a knee scooter if possible.

23    Ms Wong replied to Dr Ponraj by email on 5 May 2020 as follows:

Dear Dr Ponraj,

Thank you for your email.

Given the below stated timeframe that you will be temporarily unable to render medical services from OMH Williams Landing due to issues with your ankle, can I please seek all relevant information concerning your temporary illness.

I refer to your contractual agreement in Section 15.5(b) where “you must provide us all relevant information concerning your temporary illness within 14 days of becoming aware of the temporary illness”.

I await your response on this matter urgently.

(Original emphasis.)

24    Ms Wong states that she attempted to telephone Dr Ponraj to discuss her email after it was sent, but he did not answer and nor did he return her telephone call. He did however respond by email at 8.35 pm on 5 May 2020, as follows:

Hi June

Sorry I missed your call. As I mentioned in my previous email due to my ankle issues I have been advised to non weight bear for 3 months and review with MRI. So as I can’t weight bear unable to attend OMH Williams landing (that’s the request for remote access) during that period and will update you after review and further MRI in 3 months.

Hope this information is adequate.

25    Shortly thereafter, Ms Wong had a discussion with Mr Henry Bateman who is the Chief Executive Officer and Managing Director of the respondent. It was agreed that Ms Wong should arrange for Dr Crimmins to undertake an independent review and speak with Dr Ponraj. Dr Crimmins is contracted to provide independent clinical assessments to the respondent. On 10 May 2020, Ms Wong emailed Dr Crimmins and requested that he “have a chat with” Dr Ponraj in relation to the ankle issue.

26    Dr Crimmins gives evidence that he telephoned Dr Ponraj on 11 May 2020 and they had a brief conversation. On his version, Dr Ponraj refused to engage in meaningful discussion. To the best of Dr Crimmins’ recollection, the conversation proceeded to the following effect:

Me:     Hi doctor Ponraj. Dr John Crimmins here. I am ringing to talk about your injury and request for remote access. Do you have a moment to speak now?

Ponraj:         Yes. / am okay to talk now.

Me:         Thank you. How are you going, what has been going on?

Ponraj:     I've got an injury to my ankle and I'm currently bedbound. I've been advised to be non-weight bearing for the next 6-8 weeks and I currently wear a space boot and get around on crutches. I can only take a few steps at a time.

Me:     That doesn’t sound very good. Have you been given a diagnosis of the issue?

Ponraj:    I've been seeing an ankle specialist and I've had an MRI which shows I've got [inaudible]

Me:     Sorry I didn’t catch what you were saying just then. Can you please spell that out for me doctor?

Dr Popraj:     Why am I talking to a doctor who does not know this - why should I spell it? I have AVASCLAR NECROSIS.

Dr Ponraj yelled this last part of the conversation in a raised voice and then hung up the phone.

I understood that Dr Ponraj had become very angry at me during this conversation once I asked him to spell out his diagnosis, but I was unsure of the reason why this made him upset.

27    Dr Crimmins made a brief handwritten note of the matters discussed with Dr Ponraj, which assists his memory, although it is not very detailed. It does record that Dr Ponraj informed him that he was using crutches, was bed-bound and that his ankle should be non-weight-bearing for between six and eight weeks.

28    In his evidence, Dr Ponraj gives a different version of this discussion. He states:

After Dr Wong [sic] refused my request to consult remotely, I received a telephone call from Dr John Crimmins (“Dr Crimmins”).

Dr Crimmins was abrupt and rude whilst questioning me about my condition. Dr Crimmins said words to the effect of

“if you can walk to the toilet and shower at home, why can’t you come to work.”

I found the above conversation and Dr Crimmins questions to me extremely insulting and undermining of my standing as an experienced and competent general practitioner.

Further, I had not had dealings with Dr Crimmins before and I was shocked that he was aware of my injury despite my having requested the Practice to keep my personal information confidential.

I ended the phone call after a couple of minutes. I had not been provided with any notice that Dr Crimmins would be enquiring about my injury.

29    Once again, that evidence of Dr Ponraj is unhelpful in that it is argumentative. Dr Ponraj makes little attempt to set out his recollection of what was said, or at least the effect of the content of the discussion.

30    Dr Crimmins, in his evidence, denies that he was abrupt or rude or that he spoke words to the effect quoted by Dr Ponraj. In evidence before me, I was impressed by the measured and calm responses of Dr Crimmins to multiple, and often confusingly complex, questions that were put to him by Dr Ponraj. Many of the questions were irrelevant or of peripheral relevance to the issues that I must decide. The questioning was discursive. Although Dr Crimmins was challenged as to the accuracy of his recollection, he maintained his version of the discussion, which is supported by an email that he subsequently sent to Ms Wong at 9.16 am on 11 May 2020 which records that the conversation lasted for two minutes, that Dr Ponraj terminated it abruptly, stating that Dr Crimmins “had no understanding of his condition” and it then sets out the understanding of Dr Crimmins as to the nature of the ankle issue. It concludes with the sentence: “Overall he has a possible chronic ankle condition (not cited any reports ect.[sic]) and he is asking for a disability type leave?”

31    I find in accordance with the evidence of Dr Crimmins as to what was discussed with Dr Ponraj on 11 May 2020. I do so for the reasons that his evidence is detailed, is set out to the best of his recollection as to the effect of the words spoken by each participant and is in part corroborated by his contemporaneous note and the email he subsequently sent to Ms Wong. All of this is in stark contrast with the evidence of Dr Ponraj, which for the reasons that I have given, I find quite unpersuasive.

32    Ms Wong also had a telephone discussion with Dr Crimmins on 11 May 2020, which she erroneously states as occurring on 10 May 2020. Her recollection of the discussion is:

Crimmins:     I spoke with Dr Ponraj today. He was very brief with me, I think I caught him at the wrong time and made him upset with me. I couldn’t hear what he was saying clearly so I had to ask him to spell out his diagnosis.

Me:             What information were you able to gather from him?

Crimmins:     I couldn’t hear what he was saying and asked him to spell out his diagnosis. He was very upset with me. I understand that he has a diagnosis of Avascular Necrosis of the Talus. It was diagnosed by MRI and the opinion of the Ankle Surgeon is that he should not bear weight for 6 to 8 weeks.

Me:             Is he able to move around at all?

Crimmins:     Dr Ponraj told me that he is fully bed bound, non-weight bearing and he uses crutches to get around.

33    I accept this evidence and consider it relevant to the question of causation which is one of the issues that I must resolve in this matter. It also explains the subsequent correspondence between Ms Wong and Dr Ponraj. On 11 May at 2020 at 9:21 am, Dr Ponraj emailed Ms Wong as follows:

Hi June

I had a call from Dr John Crimmins introducing himself as clinical counsel for cornerstone.

Unfortunately his communication is very disrespectful and intrusive to say the least.

Can I clarify something as I told you before I cant work at OMH williamslanding for now until further notice as you declined remote working.

I have already given you the time frame of 6 to 8 weeks.

Please dont disturb me any further. I will let you know any further developments.

34    This email caused Ms Wong to telephone and speak with Dr Ponraj. Her evidence of the conversation is:

Ponraj:    Dr Crimmins called me and was rude to me. I do not understand what his involvement is and I do not want to speak with him again.”

Me:    Dr Crimmins is Cornerstone’s clinical consultant, and when Cornerstone needs advice in relation to medical issues it seeks his services to assist.

Ponraj:         I do not want to speak with him ever again.

Me:     I will advise Dr Crimmins of this, but given his role in the business I don’t think you can avoid contact with him completely. There will be ongoing education programs that you will be invited to and at times he may need consensus from all the doctors in relation to policies. He will be in contact as part of his job, but is it your choice whether you speak with him.

35    Dr Ponraj does not recall the content of this discussion. I find that it occurred and the substance of matters discussed is as recalled by Ms Wong.

36    Following that discussion, Dr Ponraj sent a short email to Ms Wong which invited her to read an email sent by Dr Crimmins to Dr Ponraj at 9.20 am on 11 May 2020 which apologised for asking Dr Ponraj to spell his diagnosis and continued:

..it is my practice to clarify what anyone tells me, so I remain clear on what was said. No insult was intended.

Maybe at some time we can resume the chat.

37    That was the last contact that Dr Crimmins had with Dr Ponraj. Based on the limited information that he had gathered, Dr Crimmins understood that as at May 2020, Dr Ponraj was bed-bound and that his practitioner had assessed his condition such that he would be non-weight-bearing for between six and eight weeks.

38    Ms Wong had a further telephone discussion with Dr Ponraj on 12 May 2020 and her evidence is that it was to the following effect:

Me:     Hi Dr Ponraj. Thanks for your email and I wanted to follow up.

Dr Ponraj:     As you won’t give me remote access I will have to be away for 6-8 weeks. I don’t want to be disturbed and that Dr Crimmins is not to contact me again. I will let you know any developments. Crimmins was very rude and Cornerstone has told him personal information about me. He is an outsider and you had no right.

Me:     I am sorry you are upset. Dr Crimmins is engaged by Cornerstone to provide professional and independent advice. advises [sic] Cornerstone and is an professional independent GP. We did not divulge any personal information to Dr Crimmins, he simply wanted to speak with you about your situation.

Dr Ponraj:     I felt very disrespected by him and he did not even have the courtesy to spell my name correctly. Very insulting.

39    Dr Ponraj denies Ms Wong told him anything about Dr Crimmins’ role within Cornerstone or that personal information was discussed. Dr Ponraj again fails to set out his recollection of the discussion or the effect of what was said. I find in accordance with the evidence of Ms Wong that the substance is as recalled by her.

40    Dr Ponraj also emailed Ms Wong on 12 May 2020 and stated:

Hi June

Many thanks for your call today and thanks again for listening to me.

As requested by yourself regarding my inability to attend OMH williamslanding I can confirm again that I wont be able to attend for the next 6 weeks (from 29/04/2020) at least for medical reasons (as you needed the timeframe) and await further review and update you as and when I get it.

I would like you to kindly send me a letter confirming that the Company unable to give me remote access for a reason as you told me over the phone and emailed me before. (I have been requesting remote access since my first email).

Following on from my previous email regarding Dr John Crimmins telephone call and follow up email (still don’t understand the reason for his call apart from disturbing me mentally) I would like the company to take it seriously and notify any actions.

41    Ms Wong did not immediately reply to that email. Dr Ponraj sent a further email to her on 18 May 2020:

Dear June

I am still waiting for letter of confirmation that company unable to provide remote access (which I requested from 29/04/2020) as I need for income protection.

Unfortunately I have decided to attend the medical centre when I can (will contact Julia today or tomorrow) as left with no choice.

I kindly request the company to treat with people with temporary or permanent disability with some respect and consideration.

As much as physical disability I have been made to go through additional mental stress is not a great help.

I still haven’t heard from you what has been done Dr John Crimmins phone call to me on Monday 04/05/2020.

42    Dr Ponraj attended the Practice on 18 and 19 May 2020 and according to Ms Wong provided medical services in person and remotely. In contrast, Dr Ponraj says he only consulted using telehealth. Ultimately this difference is of no consequence. What is uncontroversial is that he was not requested to attend by Ms Wong or any other representative of the respondent.

43    Ms Wong did ultimately respond by email on 20 May 2020:

Dear Dr Ponraj,

Thank you for taking my call and updating me on your situation.

As per our phone conversation on the 12th May, given that your health & wellbeing is important, I encourage you to take the time to ensure a speedy and full recovery so that you may return to the medical centre as soon as you are ready.

As you stated that you require 6 weeks absence from the centre, I have verbally acknowledged that during our call hence returning to an estimated date of the 30th June 2020. This means that the term of your contract will extend by 6 weeks. This ensures that your absence entitlement this calendar year is intact for the balance of the year in case it is required. We will send a letter confirming same in due course.

Please do not hesitate to contact me on any further queries.

44    Between 20 May 2020 and 12 June 2020, Dr Ponraj did not attend the medical practice. Ms Wong gives evidence, which I accept, that her state of mind at that time was that “it was in the best interests of Dr Ponraj to concentrate on getting well. Once he was well and able to return to the medical centre we would do all that we could to support him in his practice.”

45    On 21 May 2020, Dr Ponraj replied to Ms Wong:

Hi June

Many thanks for your belated reply.

Unfortunately you missed out on two important issues I have raised in my emails dated 12/05/20 and 18/05/20.

1. Letter of confirmation regarding remote access (which I feel should have been provided from 29/04/20 or at least 05/05/20) the company declined.

2. Any actions if at all to address Dr Johns inappropriate phone call on 11/05/20.

…

46    The balance of this email draws attention to certain provisions of the Agreement and concludes with the sentence: “I consider this email as notice”. Ms Wong did not respond to that email. Rather, later on 21 May 2020, Mr Bateman did:

Dear Ponraj

We are not going to provide remote access. Our agreement specifically outlines what we will provide in terms of services to you and it does not include remote access for reasons we are happy to explain.

I apologise on behalf of the Company if John offended you in any way.

As soon as you are fit an ready we look forward to your return to the centre.

47    This email is pleaded as constituting the “second refusal”. Dr Ponraj returned to the Practice on 13 June 2020 and on that day he had a conversation with Ms Wong. Her evidence is that it included words to the following effect:

Dr Ponraj:     I want to do telehealth from my room. I don’t want to see anyone face to face unless they are my regular patients and I know them. I would also like to work reduced hours.

Me:    I confirm that you can return to work as you see fit and that your hours will build over time as you feel better and improve. We agree to you doing telehealth from your room and that we will move you to a room closer to the treatment room so that you can walk around less when consulting with your regular patients.

Dr Ponraj:         I don’t want to move rooms. I want to stay in my room.

Me:     Okay, the front desk and Julia will do all that they can to help you.

Dr Ponraj:         Okay, thank you. That would be very helpful.

48    Dr Ponraj does not recall this discussion. I find in accordance with the evidence of Ms Wong. When Dr Ponraj returned to the Practice on 13 June 2020, he wore a CAM boot and used crutches in order to provide medical services remotely and sometimes in person. Certain accommodations were offered or provided by the respondent, including an offer to relocate to a consulting room closer to the bathroom and the provision of a cooler for injections in order to limit the movement required. On 27 July 2020, Dr Ponraj emailed Ms Wong and made certain allegations about bullying behaviour by other staff. Those allegations were investigated. As they do not form a component of the pleaded case of discrimination, it is not necessary that I essay this aspect of the evidence in deciding the claim.

49    With effect from 13 August 2020, Dr Ponraj ceased using his CAM boot and crutches whilst at the Practice.

50    On 22 September 2020, Dr Ponraj sent a notice of breach of the Agreement (dated 17 September 2020) by email to Ms Wong setting out certain factual incidents and alleging that the respondent had acted inappropriately, interfered with his practice and which repeated his allegations of bullying by management and staff. On 1 October 2020, the respondent replied to Dr Ponraj denying the allegations.

51    On 6 October 2020, Dr Ponraj sent a further email to Ms Wong stating that he found the respondent’s response “inappropriate, inadequate and unacceptable” and that he would “not be able to attend [the Practice] any more due to obvious reasons…” The respondent replied to Dr Ponraj on 30 October 2020 repeating its denial of the allegations and seeking confirmation of Dr Ponraj’s return date to the Practice.

52    Later on 30 October 2020, Dr Ponraj further corresponded with Ms Wong and confirmed his position that he “will not be attending [the Practice] any more due to reasons including Breach of [the Agreement]” by the respondent.

53    On 2 November 2020, the respondent sent a formal notice of breach of the Agreement to Dr Ponraj asserting various breaches of particular terms concerning his failure to attend the Practice. The notice gave Dr Ponraj 14 days to remedy the breach by returning to the Practice and by resuming the provision of medical services. It also sought an undertaking to see patients in person. The respondent warned that if the breaches were not remedied, it would terminate the Agreement immediately and pursue Dr Ponraj for damages. The breaches were not remedied.

54    On 30 November 2020, the respondent sent a second notice of breach to Dr Ponraj which repeated the allegations of breach and added that Dr Ponraj was providing medical services from a medical practice in Werribee, contrary to an exclusivity clause. The respondent required Dr Ponraj to remedy the breaches within 14 days. He did not.

55    On 3 February 2021, the respondent sent notice of termination of the Agreement to Dr Ponraj.

56    On 19 May 2020, Dr Ponraj lodged a complaint with the Australian Human Rights Commission alleging discrimination on the basis of disability termination of which, on 13 November 2020, lead to Dr Ponraj commencing his claim in this Court pursuant to s 46O of the Australian Human Rights Commission Act 1986 (Cth).

The disability discrimination claims

The claim in the context of the statutory provisions

57    By his claim, Dr Ponraj alleges that the respondent discriminated against him directly or indirectly within the meaning of ss 5(2) and/or 6(1) of the Act and did so unlawfully in employment contrary to ss 15(2)(b) and (d) of the Act. He claims damages by way of compensation for lost income, general damages, aggravated damages and interest. The respondent denies each allegation of discrimination.

58    It is not in dispute that Dr Ponraj suffered the ankle issue, or that it constitutes a disability as defined in section 4 of the Act. It matters not that Dr Ponraj is expressly not an employee pursuant to cl 17 of the Agreement and is engaged as an independent contractor, as s 4 of the Act extends the definition of “employment” to include “work under a contract for services”.

59    Central to the operation of the Act is the concept of discrimination, which is either direct or indirect pursuant to ss 5 and 6. Section 5 of the Act defines direct disability discrimination as follows:

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b)    the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

(3)    For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

(Original emphasis.)

60    There is an important deeming definition enacted within s 4 which provides:

“reasonable adjustment”: an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.

61    Unjustifiable hardship “has a meaning affected by” s 11 which provides:

Unjustifiable hardship

(1)    For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:

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

(b)    the effect of the disability of any person concerned;

(c)    the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;

(d)    the availability of financial and other assistance to the first person;

(e)    any relevant action plans given to the Commission under section 64.

Example:    One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.

(2)    For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.

62    Returning to s 5, paragraph 2 was inserted by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) (the Amendment Act). Its purpose and legislative history was comprehensively analysed by Mortimer J in Watts v Australian Postal Corporation (2014) 222 FCR 220; [2014] FCA 370 (Watts) at [15]-[23] and by the Full Court in Sklavos v Australasian College of Dermatologists (2017) 256 FCR 247; [2017] FCAFC 128 (Sklavos) at [34]-[37], Bromberg J; Griffiths and Bromwich JJ concurring. At this point, I pause to observe that the amendment was introduced after the High Court decision in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62 (Purvis) where by majority the Court held that the former provision did not impose a positive duty to accommodate a person with a disability. It now does.

63    Section 6 of the Act defines indirect disability discrimination as follows:

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c)    the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

(c)    the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

(3)    Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

(4)    For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

(Original emphasis.)

64    Section 6(2) was also inserted by the Amendment Act.

65    Section 15 controls the application of the Act to employment discrimination. The applicant’s case is that, by virtue of its conduct, the respondent discriminated directly or indirectly and thereby breached s 15(2)(b) or (d) which relevantly reads:

It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability:

…

(b)    by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or

    …

(d)    by subjecting the employee to any other detriment.

66    Dr Ponraj alleges that by reason of the first and/or the second refusal of his requests to be permitted to work from home, the respondent failed to make reasonable adjustments in that he was required to attend the Practice in order to provide his contracted medical services to patients. The case is not clearly pleaded in the alternative.

67    The onus of proving disability discrimination rests on Dr Ponraj: Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69 (Qantas) at [65], French and Jacobson JJ and [132], Branson J. The applicant’s onus extends in this case, as s 5(2) is relied on, to establishing the adjustments which it is said the respondent did not make to accommodate the disability, at which point the onus shifts to the respondent by operation of s 11(2) to establish that the adjustments would impose unjustifiable hardship upon it, in order to displace the operation of the definition of reasonable adjustment at s 4. See generally the analysis of Perry J in State of New South Wales (Department of Justice - Corrective Services) v Huntley [2017] FCA 581 at [102], [112], and [144] and [200]. There is authority of this Court that direct and indirect discrimination are mutually exclusive and the same conduct cannot amount to both as is alleged by the applicant in this matter: Sklavos at [13]-[16], Bromberg J relying upon Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165; Waters v Public Transport Corporation (1991) 173 CLR 349 (Waters); Munday v Commonwealth (No 2) (2014) 226 FCR 199; [2014] FCA 1123.

68    Further, each subparagraph of s 15(a) to (d) is directed to different conduct, and (d) is residual as explained by Mortimer J in Watts at [59]-[68].

69    In Waters, Dawson and Toohey JJ explained the essential distinction between direct and indirect discrimination as follows (at 392):

A distinction is often drawn between two forms of discrimination, namely "direct" or "disparate treatment" discrimination and "indirect" or "adverse impact" discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such "equal" treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers. Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.

(Citations omitted.)

70    Although the claim was drafted by the applicant’s legal representatives in a way that does not clearly maintain these distinctions, and proceeds by characterising the facts as amounting to each form of discrimination as well as a breach of each of s 15(2)(a) and (d) of the Act, mindful that the applicant is self-represented, I will resolve the claims as though they were pleaded in the alternative.

The direct discrimination claim

71    The case is, in essence, that the respondent should have permitted Dr Ponraj to work from home providing medical services by telehealth as a reasonable adjustment following the first and/or the second request. It is contended that the failure to make this adjustment involved direct discrimination as defined in s 5(2) of the Act, which is unlawful in employment by reason of s 15(2)(b) and (d) because the respondent’s ability to earn income was denied or limited which was a detriment. Dr Ponraj does not contend that the respondent engaged in discrimination within the meaning of s 5(1) of the Act. The issues that I must decide may, for convenience, be described as the reasonable adjustment, comparator and causation questions.

Reasonable adjustment

72    The reasonable adjustment that Dr Ponraj relies on in his claim is:

The respondent could have facilitated the Applicant working from home consulting patients via Telehealth Services without incurring significant effort or cost and thereby imposing little or no hardship on the Respondent

73    The pleading of Dr Ponraj goes further than his onus requires: having identified the reasonable adjustment, it is for the respondent to discharge the burden of proving that the identified adjustment would impose unjustifiable hardship by operation of s 11 of the Act. However, nothing turns on that.

74    The respondent denies that reasonable adjustment and contends that implementing it would have imposed unreasonable hardship. By way of particulars to this pleading it says:

Allowing the Applicant to provide healthcare services remotely from home during the period he was injured would have imposed an unjustifiable hardship in that it would mean allowing a medical practitioner who was unwell to provide medical services, which would be contrary to the Respondent’s duty of care to the Applicant and to patients who attend the Respondent’s medical practice.

75    Section 5(2) operates explicitly to impose a duty to make reasonable adjustments: Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth) (cl 35), which Mortimer J comprehensively essayed in Watts, commencing at [15] and concluding at [27] with:

The somewhat absolute nature of the definition of reasonable adjustment has tangible consequences for potential discriminators. There is no room in the operation of s 5(2) for a discriminator, or a court, to assess conduct, or modifications, by reference to notions of reasonableness. The statute removes that capacity. Unless a modification involves unjustifiable hardship, it will by operation of s 4 be a reasonable adjustment and the discriminator must make it “for” the person, to avoid the consequences s 5(2) (read with other provisions in the DDA) might otherwise impose. The legislative choice about what is “unreasonable” for the purposes of this scheme is expressed in the inherent requirements exception, and in the concept of unjustifiable hardship. I deal with these provisions in more detail at [35] and [57] below. One consequence is that what constitutes “hardship” and the circumstances in which it might be “unjustifiable” may be broader than if the statute used reasonableness as a criterion of liability.

76    The evidence establishes that the respondent was perfectly capable of permitting some of its contracted medical practitioners to provide medical services remotely during the period of the COVID-19 pandemic between March 2020 and March 2022. Ms Wong in her evidence-in-chief said:

In around March 2020, Cornerstone put in place a COVID Safe plan to help mitigate the risks posed by COVID-19 to its staff and patients. This approach was developed by the executive of Cornerstone as well as its heads of departments. I was involved in these discussions.

As part of this, we also put in place a protocol to deal with the requests from the practitioners for remote access to medical records (Policy). The Policy allowed for some Practitioners to be granted remote access if they either had a health condition which placed them at a higher risk of contracting COVID-19 or if they had loved ones who had underlying health conditions or were immunocompromised and thus they could not attend the medical centres to see patients.

Additionally, as a part of the Policy, Cornerstone maintained its existing position that sick or impaired health care professionals would not be provided with remote access and not be able to see patients from home during the period that they are sick or impaired, as this would be contrary to their duty of care as medical practitioners.

During the COVID-19 pandemic, I recall that Cornerstone granted two doctors and one employee remote access to enable them to conduct their medical practice remotely from home. However, these were confined to circumstances where Dr John Crimmins (an Independent Clinical Counsel engaged by Cornerstone) made an assessment that the practitioner had an underlying health condition that placed that practitioner at risk of contracting COVID-19 in the medical centre. I recall that the circumstances of those persons were as follows:

(a)     a practitioner who had a personal history of a serious disease which meant they were at high risk of contracting COVID-19. I do not know the details of the practitioner’s health condition as those discussions took place confidentially between the doctor in question, the medical lead of the relevant centre and Dr Crimmins;

(b)     a practitioner whose wife was undergoing chemotherapy for breast cancer; and

(c)     a care plan nurse who looked after an immunocompromised daughter.

77    For this aspect of the claim it matters not why the respondent accommodated those requests, rather it is the fact that it was able to do so. That is direct evidence that the same adjustment could have been made for Dr Ponraj. Ms Wong did not identify any particular difficulty with affording remote access requests in those circumstances. I find that it was an adjustment that the respondent could have made for Dr Ponraj.

78    The next question is whether the respondent has discharged its onus of displacing the deeming effect of the definition of reasonable adjustment at s 4 as required by s 11 of the Act? The respondent’s evidence failed to grapple with this issue beyond the various reasons explained to Dr Ponraj in the correspondence that I have set out and which does address the circumstances listed in s 11. Doubtless that explains why the respondent’s written submissions did not address the statutory circumstances, nor was it mentioned by Ms Alderson in closing oral submissions. Accordingly, I find that permitting Dr Ponraj to temporarily work from home whilst his disability inhibited his ability to bear weight on his ankle and thereby to attend the Practice was, in the circumstances, a reasonable adjustment that the respondent failed to make in response to each request of Dr Ponraj.

The Comparator

79    In the presentation of his case, Dr Ponraj did not distinctly identify the relevant comparator for his claim of direct discrimination. His pleading does not address this issue in that it fails to plead material facts that identify the comparator. Justice Moshinsky drew attention to the importance of pleading these matters in Izzo v State of Victoria (Department of Education and Training) [2020] FCA 770 (Izzo) at [48]-[57] when he struck out certain paragraphs in a statement of claim as failing to disclose a reasonable cause of action. No similar application was made by the respondent in this case. No submission was put to me that I should dismiss the claim because of this failure. Dr Ponraj did not grapple with the comparator issue in his written or oral submissions which focused, exclusively, upon his contention that the respondent had failed to make reasonable adjustments in response to his requests to consult patients remotely from home.

80    Those deficiencies present obvious difficulties in the resolution of the claim. This Court should not be required to interrogate the evidence in order to construct a comparator that may fit the applicant’s case. Regrettably, however, it is necessary to perform that task.

81    The respondent’s answer to the direct discrimination claim at this threshold is twofold: Dr Ponraj was not treated differently to the relevant hypothetical comparator and, in any event, any less favourable treatment was not because of the disability.

82    The respondent submits that the relevant comparator is:

Someone who is unwell or otherwise suffering from an injury, that is not an ankle injury, and who does not provide information to the Practice with respect to their injury.

83    In a direct discrimination claim, it is necessary at the outset to identify with precision the disability and how the established facts amount to discrimination based on it as explained by the Full Court in Qantas at [91], French and Jacobson JJ, Branson J concurring. The label “ankle issue” is not illuminating. By s 4(1) of the Act, disability is defined as meaning, inter alia, a total or partial loss of bodily functions or a malfunction of a part of a person’s body. It includes behaviour that is a symptom or manifestation of the disability and extends to a disability that presently exists or previously existed or no longer exists. The dispositive evidence of the disability suffered by Dr Ponraj is the report of the treating orthopaedic surgeon, Mr Curry. An MRI disclosed extensive bone oedema within the head of the talus, suggestive of avascular necrosis of unknown cause. Conservative treatment, with the aim of allowing revascularisation to occur without collapse of the talus, required that the left ankle be non-weight-bearing for four weeks with use of a CAM boot. Thereafter, progressive weight-bearing by use of the boot for a further eight week period was advised. Mr Curry opined that Dr Ponraj “should work from home whilst non weightbearing. He could return to work once weightbearing in the boot.” In his opinion surgery was not indicated, provided the talus did not collapse. There is no evidence that it did.

84    The ankle issue suffered by Dr Ponraj was temporary and whilst it lasted caused a partial loss of bodily function being his ability to weight-bear on his left ankle with the consequence that his movement was restricted. This caused mild discomfort, no pain whilst resting and no stiffness or deformity. That is the particular disability which founds the case of Dr Ponraj. It did prevent him from providing medical services at the Practice for the four week period of non-weight-bearing advised by Mr Curry from early May 2020. But it did not prevent him from providing medical services within that period whilst working from home consulting with patients remotely. Thereafter, once weight-bearing, the disability did not prevent Dr Ponraj from attending the Practice to provide medical services in person. Dr Ponraj claims that he was embarrassed by the need to wear his CAM boot when he did attend the Practice and as such his disability prevented him from providing medical services personally. On this claim, his oral evidence was:

Because the bottom line is this, isn’t it, Dr Ponraj, you felt like you had a right to have remote access from home, didn’t you? ---It’s not a right to remote access. If I’m providing a service that could have been provided from my home, affecting me driving with the moonboot on, walking with the moonboot in front of the patient, walking with the moonboot like then is creating a picture in front of patients I know for years, saying, “sympathise with me”, which is not comfortable. The reason – I wanted some dignity, some privacy, just to provide a service – what I’m providing in the clinic, which is available to other doctors, for me the same as well, for me. Simple.

85    I accept that subjectively Dr Ponraj was not comfortable with providing in-person medical services whilst wearing a CAM boot, but I am not satisfied on the evidence that objectively this amounted to a behaviour that is a symptom or manifestation of the disability. Mr Curry does not mention this as a sequela in his report, there is no other independent medical opinion evidence to that effect. I do not therefore take it into account as a component of the disability suffered by Dr Ponraj.

86    Having identified the particular disability, there are two central questions which must be addressed before one turns to whether the discrimination was unlawful in employment pursuant to s 15 of the Act, which were succinctly stated by Bromberg J in Sklavos at [33]:

Consistently with s 5(1), s 5(2) poses two questions—the comparator question and the causation question. Whilst the context is different, the comparator question—was the aggrieved person treated less favourably than a person without the disability would be treated in circumstances that are not materially different—is in the same terms. Just as for s 5(1) that inquiry identifies whether there is less favourable treatment. To my mind the next inquiry is the same as that identified by Gummow, Hayne and Heydon JJ in Purvis at [213] for s 5(1):

If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person’s disability.

87    Although the Act was subsequently amended in 2009 to insert into s 4 the explicit statement that a disability includes behaviour that is a symptom or manifestation of the disability and to add s 5(2), those amendments did not displace the need to identify an actual or hypothetical comparator as discussed in the majority judgments in Purvis. As is well understood, Purvis concerned a discrimination claim brought by the foster carer of Daniel Hoggan, who suffered a severe brain injury from an encephalopathic illness. He was prone to spontaneous outbursts of violent behaviour, without intent. He attended a state school. In December 1997, the education authority determined first to suspend, and later to expel, Daniel because of violence that he had inflicted upon teachers and staff at the school. The claim of unlawful discrimination ultimately failed by majority decision in the High Court: Gleeson CJ, Gummow, Hayne, Heydon and Callinan JJ. Justices McHugh and Kirby dissented. Gleeson CJ at [11] identified the comparator as follows:

The circumstances to which s 5 directs attention as the same circumstances would involve violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder. It is one thing to say, in the case of the pupil, that his violence, being disturbed behaviour resulting from a disorder, is an aspect of his disability. It is another thing to say that the required comparison is with a non-violent pupil. The required comparison is with a pupil without the disability; not a pupil without the violence. The circumstances are relevantly the same, in terms of treatment, when that pupil engages in violent behaviour.

88    The plurality reasons of Gummow, Hayne and Heydon JJ reasoned similarly at [214]:

The comparison that is to be made is of the treatment given or proposed to be given to the disabled person and the treatment of a person without the disability ‘‘in circumstances that are the same or are not materially different’’. Recognising that s 5(1) requires comparison with the treatment that would be given to a person without the disability is critical to the proper application of the Act. It is a comparison which is very different from the comparisons required by other forms of disability discrimination legislation.

89    More particularly, the plurality explained the required comparison at [222]-[224]:

It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the ‘‘circumstances’’ to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant’s contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical — circumstances in which no aspect of the disability intrudes. That is not what the Act requires.

In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant’s argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.

The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the ‘‘discriminator’’. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.

(Original emphasis.)

90    Callinan J construed the Act as not extending to criminal behaviour, but also agreed with the plurality at [273]. In contrast, McHugh and Kirby JJ in their joint dissent, accepted that the comparator must be a person without Daniel’s disability (at [115]), but differed from the majority in that in their view, the purpose of the Act “would be defeated if the comparator issue was determined in a way that enabled the characteristics of the disabled person to be attributed to the comparator” at [130] and continued:

If the functional limitations and consequences of being blind or an amputee were to be attributed to the comparator as part of the relevant circumstances, for example, persons suffering from those disabilities would lose the protection of the Act in many situations. They would certainly lose it in any case where a characteristic of the disability, rather than the underlying condition, was the ground of unequal treatment. And loss of the Act’s protection would not be limited to such dramatic cases as the blind and amputees. Suppose a person suffering from dyslexia is refused employment on the ground of difficulties with spelling but the difficulties could be largely overcome by using a computer with a spell checker. The proper comparator is not a person without the disability who cannot spell. Section 5(2) of the Act requires the comparison to be between a comparator without the disability who can spell and the dyslexic person who can spell with the aid of a computer that has a spell checker. When that comparison is made the employer will be shown to have breached the Act unless it can make out a case of unjustifiable hardship as defined by s 11 of the Act.

91    The functional limitation of Dr Ponraj in this case is that the ankle issue inhibited his ability to provide medical services in person to patients at the Practice for the period that he could not weight-bear on his left ankle. I have accepted the opinion of Mr Curry that this was a four week period from 4 May 2020. The difficult issue in this case, which is not assisted by the applicant’s pleadings or submissions, is whether the comparator is a person without any disability, contracted as a general practitioner to provide medical services to the respondent and upon the terms of the Agreement, or a person with a different disability contracted on the same basis and, in either case, in circumstances not materially different to the sequence of events that I have set out in my findings of fact.

92    In Watts, Mortimer J explained the function of the comparator question. Her Honour said (at [242]):

It is nevertheless correct in my opinion to approach s 5(2)(b) on the basis that the function of a comparator in the context of discrimination is to facilitate the isolation of the reason why the person was treated as he or she was: Purvis at [223] per Gummow, Hayne and Heydon JJ. By removing the nominated attribute but otherwise comparing how the aggrieved person was treated in comparison with another person in the same or similar circumstances, it is thought that the “real reason” for the person’s treatment more readily emerges. In the context of s 5(2)(b), it can be said that the “real effect” more readily emerges. This explanation in Purvis, combined with the particular language in s 5(2)(b), serves to highlight the overlap between “less favourable treatment” and “because of the disability” in s 5(2)(b). They are not two separate elements: rather, by reason of the comparison required, either the conclusion will be that the effect of the failure to make reasonable adjustments was to treat a person less favourably because of her disability, or the conclusion will be that it was not.

93    In Sklavos, Bromberg J did not understand Mortimer J to say that “s 5(2) does not require the same causation question to be answered as is required by s 5(1): namely was the disability a reason for the conduct of the discriminator”: at [38]. His Honour then set out paragraph [242] from the decision of Mortimer J and relevantly continued (at [39]):

Her Honour’s reasoning seems to be this. At [223] of Purvis Gummow, Hayne and Heydon JJ emphasised that in addressing the comparison inquiry, “the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What then must be examined is what would have been done in those circumstances if the person concerned was not disabled” (emphasis in original). Where that is done, the “real reason” (Mortimer J’s phrase) as to why the person was treated less favourably will more readily emerge. Consequently, there is an overlap between the comparison inquiry and the causation inquiry, in the sense that the answer to the comparison inquiry will likely reveal the answer to the causation inquiry.

94    His Honour then addressed aspects of the causation question, to which I return later in these reasons. The respondent’s formulation of the hypothetical comparator in this case is to a hypothetical medical practitioner contracted to provide services for the respondent with some form of disability, though not the disability of Dr Ponraj. There is authority, that Mortimer J identified in Watts, that the comparator, in some circumstances, may be a person with a different kind of disability: at [250], citing the decision of the Full Court in Nojin v Commonwealth (2012) 208 FCR 1; [2012] FCAFC 192 (Nojin) at [126]-[127], Buchanan J and at [242], Katzman J. The respondent’s formulation of the hypothetical comparator would seem to rely on this line of authority even though no mention was made of these cases in submissions. The statutory language at s 5(2)(b) requires comparison with a person without the disability of Dr Ponraj, and their treatment in circumstances that are not materially different. The text speaks to a person without the disability, rather than to a person without a disability, which distinction Moshinsky J accepted in Izzo (at [57]).

95    In Nojin, two claims of discrimination in employment by a disability sector employer were commenced asserting that the employer had discriminated against each applicant contrary to s 15 of the Act by implementing a wage assessment tool, the outcome of which was that certain employees with different disabilities received wages calculated at a higher rate than the applicants’. The primary judge dismissed the proceeding on the ground that the applicants were not subject to a requirement or condition imposed by the employer within the meaning of s 6 of the Act, as they were not required to obtain a higher level of assessment by application of the wage tool: Nojin v Commonwealth (2012) 283 ALR 800; [2011] FCA 1066. By majority, the Full Court allowed the appeal: Buchanan and Katzmann JJ; Flick J dissenting. The majority did so on the basis that the employer did impose a requirement or condition on the applicants by using the wage tool to calculate their wages where the tool necessarily disadvantaged the applicants as disabled workers with intellectual disabilities, when compared with other disabled workers who did not suffer from intellectual disability. On that ground, the applicants established discrimination contrary to s 6 of the Act.

96    The unchallenged expert evidence that the primary judge accepted was to the effect that persons with intellectual disability were likely to be disadvantaged by use of the wage tool, which explains why Buchanan J (at [127]) accepted that persons with non-intellectual disabilities employed in the disability sector were more likely to receive higher wages by application of the tool. In reasoning to the conclusion that the applicants had made out a case of indirect discrimination within the meaning of s 6(a) and (c) of the Act (as it was), Buchanan J was concerned (at [126]-[127]) only with the disadvantage question as relevantly then set out in s 6(a) namely whether “a substantially higher proportion of persons without the disability comply or are able to comply” and with which the aggrieved person does not or is not able to comply. For convenience, his Honour dealt with each consideration together. In resolving those issues his Honour’s reasoning was (at [127]):

On the evidence to which I have referred, disabled people who are not intellectually disabled are more likely to achieve results on BSWAT to their advantage, than intellectually disabled people like Mr Nojin and Mr Prior. That is so in two senses. First, they are not at the same risk of having their productivity score effectively reduced through an inability to score at least as well on competencies. Secondly, they have the realistic possibility of enhancing their productivity score, if it is low due to a physical disability, by demonstrating knowledge and understanding which is not reflected in actual work performance. In either case, their prospects of achieving higher pay are enhanced. By contrast, as the evidence in this case (including the evidence about Mr Nojin and Mr Prior) clearly shows, the prospects for intellectually disabled people are worse because they cannot take advantage of either aspect available to disabled people without intellectual disabilities.

97    After referencing the Full Court decision in Hurst v State of Queensland (2006) 151 FCR 562; [2006] FCAFC 100, his Honour continued (at [130]):

In the present cases, Mr Nojin and Mr Prior could certainly submit to an assessment which used BSWAT, but on the unchallenged, accepted, expert evidence their opportunity and ability to obtain a higher wage commensurate with their actual work, productivity and applied job skills was reduced by their intellectual disability. In my view, to adopt the language in Hurst, each was “deprived of the opportunity to reach his … full potential”.

98    Justice Katzmann (at [242]-[243]) reasoned to the same effect, emphasising the uncontradicted expert evidence that was received by the primary judge. Justice Flick did not find it necessary to address the comparator question, preferring to decide the appeal on the ground that the appellants failed in any event to establish the requirements or conditions elements of s 6.

99    Returning to the analysis of Mortimer J in Watts (at [250]), it is to be noticed that her Honour qualified her reference to Nojin with “there may well be circumstances where the absence of reasonable adjustments means people with certain kinds of disabilities are treated less favourably than persons with other kinds of disabilities…” It should not be understood that I accept the decision in Nojin as authority for the proposition that the relevant comparator for the purposes of s 5(2) of the Act, as it now stands, may include persons with a different kind of disability.

100    Justice Collier in Tropoulos v Journey Lawyers Pty Ltd (2019) 87 IR 363; [2019] FCA 436 (Tropoulos), in deciding a claim of direct discrimination in employment, where the claimant suffered a depressive disorder and contended discrimination on the ground that his employer failed to make reasonable adjustments for his return to work including a graduated return to work, accepted that the relevant hypothetical comparator was a professional employee with a condition which inhibited the individual from resuming full-time duties for a limited period. Her Honour said (at [201]):

In my view, a more appropriate hypothetical comparator in this case is an employee undertaking professional duties who experiences a condition such that they are unable to work full-time for a limited period of time pending resumption of full-time duties. I identify this comparator in circumstances where Mr Tropoulos has consistently stated that his complaint was the failure of Journey Lawyers to allow him to properly transition back into full time work. The condition experienced by the hypothetical comparator is not the same disability as that experienced by Mr Tropoulos – it could include for example recovery from a physical illness; it might not be a disability at all but rather be someone returning from leave whose family circumstances are such that they are unable to work full time for a period. A similar approach was taken by Bell J in Collier v Austin Health [2011] VSC 344; (2011) 36 VR 1 in respect of a complaint under the Equal Opportunity Act 1995 (Vic), where his Honour concluded at [110], in respect of an applicant with the disability of bipolar disorder:

… the correct interpretation of the provisions is that the proper comparator in the present case is a worker with a different disability to the particular disability which the complainant has, who (like the complainant) is fit, willing and able to return to graduated work and who is otherwise in the same or similar circumstances.

101    In my view, her Honour’s analysis most usefully assists in identification of the comparator in this case. The discrimination contention which founds the claim of Dr Ponraj is the temporary ankle issue. It affected his mobility. The medical opinion of Mr Curry was that he should not weight-bear on his left ankle for a period of four weeks from 4 May 2020 during which he should wear the CAM boot as much as possible. In that period he was advised to come out of the boot three times per day for ankle exercises. Thereafter, for a further period of up to eight weeks, he was advised to progress to weight-bearing whilst wearing the CAM boot. During the period of non-weight-bearing he was advised to work from home and thereafter Mr Curry considered that he would be fit to return to work, whilst either continuing to wear the CAM boot or by the use of a knee scooter. The claim is that by denying the requests of 28 April and 4 May 2020 for permission to work from home and to consult patients remotely, the respondent failed to make a reasonable adjustment, by variation of the terms of the Agreement, which had the effect of treating Dr Ponraj less favourably than a person without his disability. In my view, it is erroneous to move from identification of those circumstances (which is how the claim is pleaded) to the conclusion that the respondent engaged in direct discrimination without, as required by s 5(2)(b), identifying the circumstances that are not materially different.

102    In this case, those circumstances were firstly, Dr Ponraj did not have a right or entitlement to work from home in order to provide the contracted services. As I have identified, many provisions of the Agreement expressly required his attendance on site at the Practice in order to provide medical services directly to patients.

103    Secondly, properly understood, Dr Ponraj sought a contractual variation which the respondent did not agree to. To the extent that motive or purpose bear upon the issue (Purvis at [236]), the respondent insisted upon compliance with the terms of the Agreement because of its concern that Dr Ponraj should remain at home and rest in order to recover from the ankle issue. The respondent was also concerned that working from home would likely lead to IT problems.

104    Thirdly, the attempt by Dr Ponraj to compare the circumstances of his case with the other doctors who were permitted to work from home and to provide medical services remotely because of vulnerability to the COVID-19 virus, is an irrelevant distraction. The circumstances of those medical practitioners were not the circumstances of Dr Ponraj: he did not at any point request a work from home arrangement because of the COVID-19 pandemic. In so concluding, I have not accepted the applicant’s argument that the remote access to medical records policy, as implemented in March 2020 as part of the respondent’s COVID-19 safe plan, is relevant to the hypothetical comparator for the same reason.

105    Fourthly, the comparator must be a medical practitioner contracted to the respondent upon the same terms as Dr Ponraj and who requests a contract variation so that he or she may work from home and provide medical services remotely to patients. In my view in this case, that hypothetical person must also be temporarily prevented from attending the Practice because of some inability, which may be a disability within the meaning of the Act, but which does not prevent the person from providing medical services remotely to patients.

106    Fifthly, that person must also be one who does not engage constructively with the independent clinician engaged by the respondent to assess his or her condition and, further in the particular circumstances of this case, one who does not disclose to the respondent an independent medical assessment of the condition and its sequela in order for the respondent to be fully informed as to the condition and its effect upon the ability of the individual to provide the contracted medical services.

107    In identifying the hypothetical comparator in this way, I do not find it necessary to decide whether he or she may have, or indeed must have, a disability that is different from Dr Ponraj. As I read the passages from Purvis which I have set out, the various majority judgments do not hold that the comparator may not have a disability that is different to the complainant and in this regard I agree with the views of Mortimer J in Watts, Collier J in Tropoulos and Moshinsky J in Izzo which I have set out. To my mind, the key consideration in each case is identification of the circumstances that are not materially different, which is necessarily fact-sensitive and fact-intensive. Once those circumstances have been identified, it may be that the hypothetical comparator is a person without any disability or one who has a disability that differs from the complainant. In this case it is only necessary to identify a comparator as a person who has some temporary inability to attend the medical practice in order to provide medical services to patients.

108    Having identified the circumstances that are not materially different and the consequences of the disability suffered by Dr Ponraj as “manifested to” the respondent (Purvis at [230]), it is clear in my view that the direct discrimination claim fails because Dr Ponraj has not established that rejection of the remote consulting requests had the effect that he was treated less favourably, because of his disability, than the hypothetical medical practitioner in the circumstances that I have found were not materially different. The evidence does not support a finding that the respondent, in the circumstances identified, would have treated another medical practitioner differently: that is, more favourably than it treated Dr Ponraj.

109    The findings that I have made compel that conclusion. The respondent was first notified of the ankle issue and the inability of Dr Ponraj to attend the Practice by email on 28 April 2020. That correspondence is not informative as to the particular nature of the injury. Dr Ponraj requested advice as to “the options” to consult remotely at home. He did not attend the Practice on that day or the subsequent day. On 29 April 2020, Ms Wong telephoned Dr Ponraj to enquire as to his condition. Upon being informed that Dr Ponraj might be “out for at least eight weeks maybe longer”, she denied the request to consult remotely because of her concern that Dr Ponraj should rest in order to recover from the injury. She had concerns that remote access may compromise the integrity of the respondent’s IT system and may raise issues concerning client privacy and confidentiality. Expressly, she offered to make any adjustments that would make working from the Practice more comfortable. Clearly her communicated concern was that Dr Ponraj should rest and focus not on his contractual obligations, but upon his health.

110    Ms Wong confirmed the substance of that discussion in her email to Dr Ponraj of 29 April 2020. The next contact was the email from Dr Ponraj to Ms Wong on 4 May 2020. Although he made express reference to his consultation with the orthopaedic surgeon Mr Curry, he did not provide a copy of the report in a timely way. Dr Ponraj simply advised that he would be unable to attend the clinic for eight weeks and possibly up to six or eight months. In response, Ms Wong sought further information in her email of 5 May 2020. She attempted to telephone Dr Ponraj that day. She was not successful. Dr Ponraj sent a reply by email later that day, but once again failed to provide all relevant information then known to him as requested. Dr Ponraj did not constructively engage with Dr Crimmins during their telephone discussion of 11 May 2020. Although he did disclose the particular diagnosis, Dr Ponraj terminated the telephone call upon providing that information: notably he did not provide information to Dr Crimmins as to the effect of the ankle issue upon his mobility or what was likely to happen during the advised non-weight-bearing period that he claimed was between six and eight weeks.

111    That conversation caused Dr Ponraj to email Ms Wong on 11 May 2020. He confirmed his request to work remotely, his assertion that the respondent denied it, repeated that the timeframe was between six and eight weeks and requested that he not be further disturbed. Later that day, Ms Wong spoke with Dr Ponraj by telephone in an effort to explain the role of Dr Crimmins, but that did not cause Dr Ponraj to cooperate with the request to provide full information as to the ankle issue. On 12 May 2020, during a further telephone discussion between Ms Wong and Dr Ponraj, it was made clear by Dr Ponraj that he did not wish to be further disturbed by the respondent, that Dr Crimmins was not to contact him again and that he would advise of further developments in due course.

112    Dr Ponraj provided limited further information to Ms Wong in his email sent on 12 May 2020, and after that discussion, repeated that he would not be able to attend the Practice for six weeks from 29 April 2020 and requested that he be provided with written confirmation that remote access would not be provided. Dr Ponraj sent a further email to Ms Wong on 18 May 2020, repeated his request for written confirmation that remote access would not be provided for income protection reasons and stated that he had “unfortunately” decided to attend the Practice when able to do so, which he did on 18 and 19 May 2020. He was not requested to do so by the respondent. In an email Ms Wong sent to Dr Ponraj on 20 May 2020, she thanked him for providing further advice, confirmed that in her view his health and well-being was important, encouraged him to take time off work completely “to ensure a speedy and full recovery” so that he may return to the Practice “as soon as you are ready”. Based on the information that Dr Ponraj had provided to her, she advised that the term of his contract would be extended by a period of six weeks so as to preserve his calendar year leave entitlements. The response of Dr Ponraj by email of 21 May 2020 was not constructive. Dr Ponraj did not explain why he did not accept that he should rest at home without providing medical services remotely or that his contract be extended to accommodate him.

113    On 21 May 2020, Mr Bateman in his email to Dr Ponraj confirmed that the Agreement would not be varied to accommodate the request for remote access. The respondent insisted upon compliance with the contractual obligations of Dr Ponraj. On 13 June 2020, Dr Ponraj returned to the Practice without notice. On that day Ms Wong advised him that the respondent would accommodate the provision of telehealth consultations with patients from his practice room, that he could be relocated to a room closer to the treatment room and that the staff “will do all that they can to help you”. Dr Ponraj continued to attend the Practice, with some unplanned absences, until 14 September 2020. He did not thereafter attend.

114    On those facts, which are the not materially different circumstances, the evidence simply fails to satisfy me that on the balance of probability, the respondent treated Dr Ponraj less favourably than the comparator. Indeed, I am satisfied that the respondent was particularly accommodating to Dr Ponraj in that it was concerned for his health and well-being and to that end was prepared to permit him to remain at home in order to rest and recover, offered to extend the term of the Agreement, sought a clinical assessment of his condition and, when he did return to the Practice, offered the option of providing medical services by telehealth together with a relocation of his practice room in order to limit required movement.

115    For these reasons, I conclude that the direct discrimination claim fails on the comparator question.

Causation

116    In my view, the claim also fails on the causation question. The disability “must be a basis or reason for the conduct of the discriminator”: Sklavos at [23], Bromberg J. On the facts as I have found them, the treatment of Dr Ponraj by the respondent was not because of his disability. Rather, each of his two requests to provide the contracted medical services remotely were denied primarily because the respondent’s clinical model, as expressed in the Agreement, required general practitioners to attend each designated practice in person in order to provide medical services personally to patients who attend the practice for that purpose. Further, the requests were also denied because of concerns that Dr Ponraj should rest and recover and not perform, in some modified way, his contractual obligation; that remote access may compromise the respondent’s IT systems and due to concerns relating to patient confidentiality.

117    It is unnecessary that I proceed further to determine the question of whether the respondent failed to make reasonable adjustments.

Indirect discrimination

Overview

118    The pleaded claim is not illuminating. From replication of the terms of s 6 of the Act, the contention is that “by” the first and/or the second refusal, the respondent required Dr Ponraj to attend the Practice to “work” (which must be read as to provide the medical services personally), that requirement was not one with which Dr Ponraj could comply between early May to 11 August 2020 and which requirement had the effect (note, notably did not likely have the effect) of disadvantaging persons with the disability of Dr Ponraj, being an inability to attend work and to earn money. This claim is expressly confined to discrimination contrary to s 6(1).

119    The claim is further pleaded as discrimination contrary to s 15(2)(b) and or (d) as either limiting access to the ability of Dr Ponraj to derive remuneration, being a benefit associated with employment or by subjecting him to a detriment to the same effect.

120    Broadly, s 6(1) has three express elements: the complainant must comply with a requirement or condition; because of the disability, that requirement or condition cannot be complied with and the requirement or condition has the effect, or likely effect, of disadvantaging persons with the disability. If those elements are made out by the complainant, the discriminator may answer by discharging the onus at s 6(3) and (4) of proving that the requirement or condition is reasonable having regard to the circumstances of the case. An essential difference between direct and indirect discrimination that is of importance for the purposes of this case was explained by Bromberg J in Sklavos at [23]:

Under s 5, for the disadvantage (less favourable treatment) experienced by the aggrieved person to constitute discrimination, the disability must be a basis or reason for the conduct of the discriminator. Under s 6, for the disadvantage to constitute discrimination, the disability need only be a reason or basis for the disadvantage. In other words, for direct disability discrimination it is necessary that the disability explains (or partially explains: s 10) the treatment or conduct of the discriminator which resulted in the less favourable treatment. In contrast, for indirect disability discrimination it is sufficient that the disability explains the disadvantage, that is, that the disability explains the effect or impact of the discriminator’s conduct. In each case there is a causal link with the victim’s disability. In the case of s 5, the causal link is to a reason for the treatment of the disabled person by the discriminator. In the case of s 6, the causal link with the disability is with the impact of the discriminator’s conduct upon the disabled person.

121    Central to this claim is precise identification of the requirement or condition with which the respondent required Dr Ponraj to comply. It is to be noted that the pleading does not raise the more general contention that the provisions of the Agreement, which require personal attendance by Dr Ponraj at the Practice, is the relevant requirement or condition and no reliance is placed on s 15(1)(c) of the Act which is concerned with the terms and conditions on which employment is offered.

122    It is settled that the statutory phrase is to be construed broadly to give effect to the main objects of the Act as expressed at s 3 which includes the elimination as far as possible of discrimination on the grounds of disability: Waters at 389, Dawson and Toohey JJ; New South Wales v Amery (2006) 230 CLR 174; [2006] HCA 14 (Amery) at [63], Gummow, Hayne and Crennan JJ.

123    The pleaded case identifies the requirement and its effect as follows:

By the First and/or Second Refusals the Respondent required the Applicant to attend Williams Landing to work.

The requirement to attend Williams landing to work was not one with which the Applicant could comply during the absent period and/or the staged return to work period due to the Disability.

The requirement to attend Williams Landing to work had the effect of disadvantaging persons who have the disability.

124    The disadvantage is then particularised as “not being able to attend work and /or earn monies”.

125    The respondent’s answer is that it did not require Dr Ponraj to attend work at all. Rather, it encouraged him to remain at home, to rest and to take such time as he felt necessary to recover from the disability. In short, it submits that the claim proceeds on an erroneous premise. I accept that submission.

126    The requirement or condition element of the claim is not made out in accordance with my findings. In summary, Ms Wong, in responding to the first request, made it plain in her discussion with Dr Ponraj on 28 April and in her email of 29 April 2020, that he should remain away from the Practice, not provide medical services whilst disabled and take time to recover. Further, she offered to make adjustments at the Practice when Dr Ponraj considered that he could return. In response to the second request, Ms Wong in her discussions and correspondence with Dr Ponraj between 4 and 20 May 2020, accepted that he would not be able to attend the Practice as advised, confirmed that his health and well-being was the important factor and offered to extend the Agreement for a period of six weeks so as to not disadvantage him in relation to his leave entitlements.

127    The correspondence from Mr Bateman to Dr Ponraj of 21 May 2020 did not require that he return to the Practice whilst temporarily disabled. Mr Bateman confirmed that remote access would not be provided, reiterated certain provisions of the Agreement as to why, apologised if Dr Crimmins caused offence in any way and confirmed that when “fit [and] ready”, he could return to the Practice.

128    Construed objectively, it is clear that the respondent at no stage imposed a requirement that Dr Ponraj must attend the Practice in order to provide medical services to patients.

129    That finding is of itself sufficient to dispose of the indirect discrimination claim. However, had I concluded that Dr Ponraj is not bound by his pleadings (despite that this difficulty was identified by the respondent in written submissions filed before commencement of the trial) and that the substance of this aspect of his claim is that the requirement or condition was that the respondent did not agree that he could work remotely from home to derive income pursuant to the Agreement during the period of his temporary inability to attend the Practice, the claim fails for other reasons.

130    Section 6(1) of the Act provides that the requirement or condition “has or likely has the effect of disadvantaging persons with the disability” where the focus is upon apparently neutral requirements with differential impacts. Such requirements are often described as “facially neutral” but discriminatory in their effect: Sklavos at [18] and the cases referred to therein. Justice Jagot as the primary judge in Sklavos v Australian College of Dermatologists [2016] FCA 179 at [158] succinctly expressed this element:

It will be apparent that s 6, the indirect discrimination provision, involves requirements or conditions which appear fair or equal but which have a different impact on a person with a disability because of their disability. On this basis, it should be evident that Dr Sklavos's case is one which is more likely to find some traction in the indirect discrimination provisions than the direct discrimination provisions. This is because the College's examination requirements are facially neutral. They apply equally to all Australian trainees. As explained above, this makes it impossible to accept Dr Sklavos's case of direct disability discrimination because nothing the College did was because of Dr Sklavos's disability. The College did what it did because it perceived (rightly) that it was responsible for ensuring only competent persons could practice as dermatologists and it did not accept (reasonably) that Dr Sklavos was competent. It did not accept that Dr Sklavos was competent because he had not passed the College's final examinations (leaving aside, for this purpose, the dispute about the written examinations).

131    Justice Bromberg in Sklavos (at [19]-[20]) drew attention to the need to exercise caution with applying facial neutrality as the basis to delineate direct and indirect discrimination after amendment of the provisions by the Amendment Act, but accepted that “the stem from which the concept of facial neutrality found expression remains useful”: at [20].

132    Did the respondent require Dr Ponraj to comply with a requirement or condition, assuming the case is to be understood as extending to a contention that Dr Ponraj could not work remotely to provide medical services pursuant to the Agreement? Accepting that the statutory phrase is to be construed broadly to give effect to the objects of the Act and extends to “include any form of qualification or prerequisite” (Catholic Education Office v Clarke (2004) 138 FCR 121; [2004] FCAFC 197 (Clarke) at [103], Sackville and Stone JJ), nonetheless precision in identification of the particular requirement or condition is necessary: Walker v State of Victoria [2012] FCAFC 38 at [135], Flick J. In construing the provision broadly and purposively it should not be overlooked that “some notion of compulsion or obligation” is imported: Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561; [2002] FCA 987 at [56], Drummond J; Walker v State of Victoria (2011) 279 ALR 284; [2011] FCA 258 at [189], Tracey J.

133    In Amery, a majority of the High Court (Gummow, Hayne, Callinan and Crennan JJ; Gleeson CJ and Kirby J contra) held that the State of New South Wales had not indirectly discriminated in the terms and conditions of employment offered to female employees pursuant to a similarly worded provision of the Anti-Discrimination Act 1977 (NSW), where it was contended by female teachers that the pay scale differential between casual and permanent teachers operated to indirectly discriminate against women because of their sex. It was said that in order to be remunerated at a higher level, they were required to resign their casual employment in order to become permanent employees which was identified as the requirement or condition.

134    The plurality reasons of Gummow, Hayne and Crennan JJ, in rejecting the argument that the State had in substance imposed a requirement or condition, reasoned at [79]-[80]:

The immediate consequence of focusing upon the terms and conditions attendant upon the employment of the respondents as casual teachers is that the incongruity alluded to previously in these reasons becomes fatal to the respondents’ case. It cannot be said to be a requirement or condition required to be complied with in the terms and conditions of employment as a casual teacher that, in order to obtain levels of pay corresponding with levels nine to thirteen of the common incremental salary scale, the employee must cease to be a casual teacher.

Nor can it be said to be a requirement or condition, compliance with which is required in the terms on which one is offered employment as a casual teacher, that, in order to access those higher levels of pay, the employee must accept appointment as something other than a casual teacher. This last proposition is sufficient to deny any application to the situation of the respondents of s 25(1)(c), which proscribes discrimination on the ground of sex in the terms on which an employer offers another person employment.

135    And concluded at [82]:

Not every such incident may be described as being a requirement or condition, compliance with which is required either in the terms on which employment in the Education Teaching Service is offered or in the terms or conditions of employment afforded by the Department. For the reasons given above, the so-called requirement of permanence which the respondents sought to impugn was not such a requirement or condition within the meaning of the AD Act…

136    In separate reasons, Callinan J agreed at [205]-[208], particularly with the incongruity identified by the plurality, adding at [207]:

I quite agree. It is an incongruity which stems from the respondents’ formulation of the requirement or condition, which in my opinion distorts the true factual position. The appellant relevantly required nothing of the respondents. It was the respondents who stipulated a condition, or, to put it another way, sought to impose a condition in respect of their employment, that their employment as teachers be confined to particular locations. It was from that, their stipulation, and no condition imposed by the appellant, that the differential in remuneration flowed.

137    What is clear from my factual findings is that Dr Ponraj requested a contractual variation in order that he might, for a limited period, consult patients remotely whilst continuing to receive each other benefit of the Agreement. To adopt the language of Callinan J, the respondent did not require anything of Dr Ponraj. It is he who made two requests which the respondent did not agree to. It is Dr Ponraj who sought to have the respondent agree to a variation of the terms of the Agreement. On those facts, and recognising that the statutory formulation extends to qualifications or prerequisites, the respondent did not require of Dr Ponraj that he comply with any requirement or condition. Similarly, by analogy with the reasons of the plurality, Dr Ponraj was not required to comply with a requirement of the respondent that in order to derive the benefits of the Agreement, he was bound to comply with its terms. It is the Agreement which had that effect and there is no claim that by its terms the respondent engaged in indirect discrimination.

138    A further reason why the claim fails is that, even if I am wrong in my analysis of the requirement or condition element, I am satisfied that the respondent has discharged the burden of proving that the requirement, which I have assumed in favour of Dr Ponraj, was reasonable in the particular circumstances of this case as required by s 6(3) of the Act.

139    It is settled that the test of reasonableness requires objective consideration of the particular circumstances as they were in May and June 2020, is not viewed through the lens of hindsight and requires a balanced assessment of the discriminatory effect of the requirement and the reasons for it with the objective effect on the complainant: see Clarke at [115], Sackville and Stone JJ and Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 110-113, Sackville J.

140    In accordance with my findings, the respondent properly was concerned that Dr Ponraj whilst suffering from his temporary disability should rest and recover and not burden himself with providing medical services to patients. Ms Wong repeatedly made that clear to Dr Ponraj orally and in writing. Ms Wong explained in cross-examination that was the policy of the respondent and it applied to:

...anyone – any health care professionals who are sick, 45 impaired, ill or injured should not be working remotely from home. This is to ensure they take time to recover and improve and allow them to return to the practice. This policy was actually necessary for both the doctors and the patients whereby it was a duty of care from us – Cornerstone’s duty of care to ensure that the doctor’s health and wellbeing is important and, hence, also the health and wellbeing on the patients, vice versa, as a duty of care from the practitioner. And, additionally, it’s also the fact that we need to ensure there was no patient data breaches and there’s privacy for the patient and no breach of confidentiality.

Sorry. I’m not clear. So duty of care to the patient; is the onus on the doctors or Cornerstone, according to the contract?---No. Cornerstone’s duty of care to the practitioner is to ensure their health and wellbeing is important. That’s a first on hand when advised that they may be sick, injured or impaired.

141    I accept her evidence. Further, Ms Wong sought to accommodate Dr Ponraj’s temporary disability by offering adjustments once he was fit to return to the Practice and to extend the term of his contract by six weeks.

142    The disability was ephemeral. It inhibited Dr Ponraj’s ability to attend the clinic in person between 4 May and 12 June 2020. Dr Ponraj did not give evidence of any pressing financial need or hardship in that period. He unilaterally decided to attend the Practice on 13 June 2020 and continued to attend, with some absences, until 30 September 2020. He failed to attend thereafter. He failed to resume attendance in response to the respondent’s notices of 2 and 30 November 2020. Although the respondent did in some cases permit medical practitioners to work remotely from home because of vulnerabilities to the COVID-19 virus, Dr Ponraj does not assert discrimination for that reason.

143    Dr Ponraj did not constructively engage with Dr Crimmins. On the information available to the respondent at the time, Dr Ponraj suffered from a disability serious enough to prevent him from attending the Practice for a minimum of four weeks. The response that he should remain at home and rest in order to recover so that he could resume his contractual obligations was understandable and perfectly reasonable.

Conclusion as to the discrimination claims

144    I am in no doubt that Dr Ponraj feels genuinely aggrieved by the decisions of the respondent that lay at the heart of his complaint. However, as I have demonstrated, that does not establish discrimination within the meaning of the Act. His claim must be dismissed.

The cross-claim

145    By its cross-claim, the respondent alleges Dr Ponraj breached the Agreement by, in summary:

(1)    absenting himself from the Practice for 114 days during the period 1 January 2020 and 20 December 2020 of which absences only 35 days were planned or notified; and

(2)    providing medical services at another, competing, medical practice during the term of the Agreement.

146    These breaches found two notices of breach dated 2 and 20 November 2020 and, following the failure of Dr Ponraj to remedy these breaches, a notice of termination dated 3 February 2020. Contending lawful termination of the Agreement, the respondent claims an amount calculated as the termination amount in accordance with cl 15.4 of the Agreement. The total amount claimed is $574,246.58 plus interest. An additional claim for loss of service fee revenue was abandoned by Ms Alderson in her closing address.

147    Dr Ponraj, in his amended defence which he authored, apart from denying components of the cross-claim, contends that he complied with his obligation to give notice of absence and relies on a claim that he lawfully terminated the Agreement in accordance with his notice to remedy various breaches of 17 September 2020, and the subsequent failure of the respondent to remedy the breaches. He also denies that he provided medical services at another practice contrary to the Agreement terms.

148    A logical resolution of these competing claims requires that attention first be directed to the termination claim of Dr Ponraj because if he effectively terminated the Agreement in September 2020, the later notices of breach of agreement given by the respondent may not have been effective. To understand the competing contentions, it is necessary to examine the Agreement provisions in detail. Relevantly it provides:

3    Services and facilities to be supplied

3.1    We agree, at our cost and expense, to provide the Services to you during the Term.

3.2    The Services are to assist you to provide quality comprehensive healthcare to patients from the Practice at the Medical Centre.

3.3    You agree to not use the Services for private or other purposes.

3.4    You acknowledge that Wycombe does not provide any medical services to any person, and we do not hold ourselves out as doing so.

3.5    Wycombe will during the Term as your agent collect all Collected Monies on your behalf. Wycombe is appointed your agent for this purpose.

4    Clinical Independence

4.1    We agree not to specify or direct you as to how the medical services are to be performed as you must exercise your independent clinical judgment in accordance with the Standards and the Law as to the manner in which the medical services are performed.

5    Quality comprehensive healthcare services

5.1    You agree that you will:

(a)    attend the Premises and provide medical services to patients during the Hours each Practice Week;

(b)    attend the Premises and provide medical services to patients exclusively from the Premises during the Term except:

(i)    with our written consent or

(ii)    in circumstances where emergency or urgent treatment is required and the failure to provide such treatment would be considered to be unprofessional conduct and in breach of the Standards;

(c)    agree a roster that enables patients to access quality health care services during Opening Hours. To that end you also agree to being available to render healthcare services on evenings, weekends, public holidays and over the Christmas, New Year, Ramadan and Eid periods as agreed;

    …

(e)    provide comprehensive, quality medical services to patients in accordance with the Standards, the Law the customs and standards of conduct becoming practitioner and acceptable to the general body of general practitioners in Australia.

…

(g)    agree to conduct yourself and perform your obligations under this Agreement in a manner which is consistent with the Standards and promotes cooperation, collegiality and harmony amongst practitioners and other staff at the Premises.

…

6    Access to quality comprehensive healthcare services

6.1    You agree to use your best endeavours to promote the healthcare services available at the Practice and Medical Centre and to ensure that patients have access to quality comprehensive primary healthcare services during the Opening Hours at the Practice and Medical Centre.

6.2     You acknowledge and agree that by attending the Practice and Medical Centre in accordance with your Hours and meeting your roster each Practice Week that you will contribute to ensuring that patients have access to quality comprehensive healthcare services during the Opening Hours of the Medical Centre.

6.3    You agree to consider the needs, interests and welfare of the Practice and patients' ability to access quality healthcare services when taking absence from the Practice.

6.4    You acknowledge and agree that excessive absence from the Practice (including unexplained absence) will adversely impact the ability of patients to access comprehensive healthcare services at the Medical Centre.

6.5    You are entitled to be absent from and not render medical services at the Medical Centre for up to 5 weeks of each calendar year of the Term of this Agreement and the balance of which cannot be "rolled over" into or taken in the next calendar year of the Term. For the calendar year in which this Agreement commences, the 47 weeks and 5 weeks of absence from the Premises is. pro rated.

6.6    You agree that in order to ensure that patients continue to have access to comprehensive healthcare services of the Medical Centre, when planning your absence from the Practice you agree to: •

(a)    work with us to ensure that there are enough medical practitioners available to cover the Practice during the Opening Hours of the Medical Centre during your absence ensuring minimal waiting times for patients;

(b)    wherever possible work with your colleagues in the Practice to avoid being absent from the Practice during the flu season each year between May and August so that there is at least 85% of the total medical practitioners conducting their medical practices at the Medical Centre are available to be rostered during this period;

(c)    provide us with at least 8 weeks' notice in advance of your planned absence; and

(d)    ensure that you have appointed a "buddy" in the Practice in your absence to ensure continuity of care of patients in accordance with the Standards.

15    Ending this Agreement

15.1    This Agreement commences on the Commencement Date and continues until expiry of the Term or terminated in accordance with this clause.

15.2    You may end this Agreement immediately by notice in writing to us if Wycombe commits any serious breach of this Agreement and has failed to remedy that breach within 14 days of receiving a notice from you calling for that breach to be remedied.

15.3    Wycombe may end this Agreement immediately on the happening of any of the following events:

(a)    (serious breach) you commit any serious breach of any provision of this agreement and you have failed to remedy that breach within 14 days of receiving a notice from us;

(b)    (reputational damage) in our reasonable opinion, you have committed an act which if true would, in our opinion, adversely affect our reputation or business conducted from the Medical Centre;

(c)    (misconduct) you are guilty of any willful neglect or misconduct;

(d)    (disqualification) you are partly disqualified or fully disqualified under the Health Insurance Act;

(e)    (registration ceases) your registration under the Act expires (without being renewed), is surrendered, is cancelled or is suspended;

(f)    (registration conditions) conditions, notations, undertakings, reprimands or endorsements on your registration under the Act are imposed under the Act, other than those that exist as at the date of this agreement;

(g)    (confidentiality) you breach your obligations under clause 13; or

(h)    (warranties) you breach your obligations under clause 14.1 (a) to (h).

15.4    If this Agreement is terminated as a result of your breach, without limiting any other right that Wycombe may have under this Agreement, you must within 7 days pay by way of assessed and agreed damages the Termination Amount to Wycombe. The parties acknowledge that the Repayment Amount is a reasonable pre-estimate of Wycombe's losses as a result of the early termination of this Agreement.

15.5    If you are temporarily unable to perform your obligations under this Agreement (including rendering medical services from the Premises) due to you suffering a serious injury or illness:

(a)    at our election we may extend the Term of this Agreement by a period equivalent to the period in which you are unable to render medical services.

(b)    you must provide to us all relevant information concerning your temporary illness within 14 days of becoming aware of the temporary illness.

16    Protection of Wycombe’s interests

16.1    Your entry into this Agreement and the Payment received at clause 1 is valuable consideration for your agreement to abide by the obligations under clause 5.1 and for the protection of our business interests under this clause.

16.2    You agree that for the purpose of reasonably protecting our business at the Medical Centre that during the Restraint Period you will not provide medical services or be employed by or be directly or indirectly engaged with or interested in a Competing Business located in the Restraint Area.

16.3    Without limitation, the parties agree and acknowledge that the Service Fee payable by you under this Agreement is lower than the same fee that Wycombe would typically charge other medical practitioners who provide medical services at the Medical Centre and that this material and on-going benefit is valuable consideration for the obligations under this Agreement including the restraint in clause 16.2.

16.4    You agree that the obligations in this clause are reasonable and are required for the protection of:

(a)    the Practice and our business conducted from the Premises including any goodwill in that business at the Commencement Date and the goodwill which will be generated by the ongoing development of that business and the Practice at the Medical Centre; and

(b)    the practices of other healthcare practitioners rendering medical services from the Premises and who might not agree to render medical services from the Premises were their practices not protected.

16.5    You acknowledge that damages alone may not be an adequate remedy for a breach by you of this clause 16 and you consent to Wycombe obtaining injunctive relief in relation to any breach or reasonably apprehended breach of this clause.

16.6    For each time you provide a medical service in breach of clause 16.2, you agree to pay us, as agreed and assessed damages of 30% of the gross fee payable to you in respect of that medical service.

16.7    Without limiting clause 21.1 if any provision of clause 16 is unenforceable or illegal or void, but would in the circumstances be valid and enforceable if read down to an extent, then it is to be read down only to the extent required to be valid and enforceable.

16.8    Despite anything else in this Agreement you are entitled to render medical services:

(a)    in circumstances where urgent medical treatment is required where the failure.to do so might be regarded as unprofessional or unsatisfactory professional conduct in breach of the Standards and

(b)    at an alternative location with our written consent.

149    The termination amount at cl 15.4 is defined as the “Repayment Amount plus the Procurement Fee” each of which are defined as:

Repayment Amount means a pro rata calculation being the total of any amounts paid to you under clause 1 multiplied by the proportion of days remaining in the Term from the date that you cease to render medical services under this Agreement.

Procurement Fee means any fee paid by us in connection with you entering into this agreement and is a pro rata calculation being the total amount of the Procurement Fee paid by us multiplied by the proportion of days remaining in the Term from the date that you cease to render medical services under the Agreement.

150    The term is six years from the commencement date of 15 April 2019. Item 9 sets out the hours of attendance. In summary, 45 hours per week between 7 am and 10 pm, one week day evening between 6 pm and 10 pm, one nine hour rostered shift on a weekend plus a requirement to work on certain public holidays.

151    If the respondent is correct in its claim that it terminated the Agreement for breach, then the unchallenged evidence of Mr Young, who is the Chief Financial Officer of Cornerstone Health Pty Ltd, is that amounts of $55,000 and $300,000 were paid to Dr Ponraj on 21 December 2018 and 29 January 2019 respectively, the latter payment being in accordance with the terms of the loan agreement between the respondent and Dr Ponraj. Thereafter, on 11 July 2019, a further amount of $517,500 was paid to Dr Ponraj after making allowance for the offset of the amount of the loan plus interest. That comprises the “Repayment Amount”. To this amount there is added the “Procurement Fee”, although its quantum was not the subject of direct evidence. In his affidavit, Mr Young stated that the respondent had calculated the total termination payment in accordance with the Agreement as $574,246.58. Dr Ponraj did not challenge that evidence in cross-examination and I find according to it. It does not include the claim for interest, which is not provided for in the Agreement and relies on s 51A of the Federal Court of Australia Act. The respondent is yet to particularise the interest claim.

152    Dr Ponraj claims to have effectively terminated the Agreement by reason of the respondent’s failure to respond to the allegations in his notice of breach dated 17 September 2022 addressed to Ms Wong and Mr Bateman. It is somewhat difficult to follow the logic and sequence of this contention. The notice is somewhat discursive and in part argumentative. It purports to have been given pursuant to cl 15.2 of the Agreement. It will be noticed in accordance with the extracts above that the ability to rely on this clause is limited to the commission by the respondent of a serious breach of the Agreement, which is not remedied within 14 days of receiving a notice which requires the identified breach to be remedied. If that procedure is implemented, Dr Ponraj “may” end the Agreement. It does not contain an automatic termination clause.

153    It is not productive to set out verbatim the notice from Dr Ponraj. It is difficult to follow the allegations and how they amount to a breach. It sets the history of prior dealings as recalled by Dr Ponraj, which in material respects differs from my findings. In summary it asserts:

(1)    A breach of cl 3.1 by failing to provide services and facilities being the ability to work remotely from home consulting patients by telehealth and remotely access patient records;

(2)    A breach of cll 3.4 and 4.1 in that Dr Crimmins interfered with the clinical judgment of Dr Ponraj; and

(3)    Various claims relating to workplace bullying, including the seating of a patient outside of Dr Ponraj’s room, favouritism by management staff, being left out of communications, the taking of his temperature by nursing staff and the failure to allocate patients to him for telehealth consultations when he did attend the Practice.

154    Dr Ponraj gave the respondent 14 days to remedy the articulated breaches by addressing the following issues:

1.    Loss of Income due to inappropriate actions by the company and its Management staff and the undue stress that Myself and My family has to go through this during difficult times which is difficult to calculate but for the purpose of convenience and going forward to be $100000 (but not limited to)

2.     Assure Me that Dr John Crimmins or anyone else for that matter will not interfere with my Practice at OMH, Williams Landing in any capacity.

3.     Wycombe will disclose to me immediately if any financial association of management staff and other GP at the centre at any capacity since its opening on 29/05/2020. Any financial loss to my practice has to be decided after disclosure.

4.     Wycombe will give assurance and Undertaking that any of their management staff will not engage in any bullying.

155    Although it is not clear from the notice the relevance of the financial association of management staff, I understand this to be a reference to an allegation by Dr Ponraj that the respondent was responsible in some way for his practitioner number being used to order unnecessary pathology tests from the pathology practice 4Cyte Pathology, which matter I address further below.

156    On 1 October 2020, Ms Wong responded to this notice. She commenced by making the valid point that: “it is not apparent what the connection is between the factual incidents alleged in the alleged breaches of clauses 3.1, 3.4 and 4.1” of the Agreement. In general terms each allegation of breach was denied. She then addressed, over three pages, the specific factual contentions asserted by Dr Ponraj. It was not put to Ms Wong that her statements were not true.

157    On 6 October 2020, Dr Ponraj responded. The first three sentences read:

Many thanks for your reply.

Unfortunately your response to the notice is inappropriate, inadequate and unacceptable for obvious reasons.

I will not be able to attend the OMH Williams landing any more due to obvious reasons as advised by Professionals.

158    Ms Wong responded on 30 October 2020, repeated the earlier denials of discriminatory conduct as asserted and concluded with:

As previously requested, we seek your return to the Centre as soon as possible. We also seek your return to seeing patients face-to-face in your usual roster when you resume your practice. Please confirm your return date.

159    Dr Ponraj responded that day. He confirmed that his position had not changed since his correspondence of 6 October 2020 and that he would not attend the Practice “any more due to reasons including breach” of the Agreement by the respondent. There was no further correspondence relating to the notice given by Dr Ponraj.

160    I am not satisfied that the respondent breached the Agreement as contended by Dr Ponraj. As I have explained, the respondent was not contractually obliged to grant the requests for remote access. The Agreement required Dr Ponraj to attend the Practice and to provide the medical services personally to patients. The construction to the contrary that Dr Ponraj places on cll 3 and 4 of the Agreement is plainly wrong. The respondent agreed at its cost to provide the “Services”, which cl 1 defines as equipment, facilities administrative support and other services “reasonably required in order for you to render the medical services from the Premises…”

161    Nor did the respondent, by the conduct of Dr Crimmins, breach the clinical independence obligation at cl 4.1 of the Agreement. On no view, in accordance with my factual findings, did Dr Crimmins attempt to interfere with the independent clinical judgment of Dr Ponraj in his provision of medical services.

162    Nor is there any merit in the various contentions that the respondent breached the Agreement by reason of the assertions of workplace bullying, favouritism, the failure to provide telehealth services when Dr Ponraj chose to attend the Practice or by reason of the interaction between Dr Ponraj and other staff members. These allegations were simply not made out on the evidence, were refuted by Ms Wong in the correspondence that I have referred to and it was not put to her that the statements of fact contained in that correspondence were incorrect or misleading.

163    Finally, there is the pathology issue that Dr Ponraj made much of in evidence and submissions. His evidence, which I accept, is that on 7 September 2020, he received a telephone call from an employee of the Department of Health querying his ordering of additional (and I infer unnecessary) pathology tests for a large number of his patients that were referred to 4Cyte Pathology (the pathology service provider who operated from the Practice) and informing him that the Department would be investigating this matter further. Dr Ponraj clearly considers the respondent to be either responsible for, or complicit in, this matter on account of its contractual relationship with 4Cyte Pathology, which relationship Ms Wong admitted. In his view, employees of the respondent acted unethically and unlawfully.

164    The apparent relevance of this issue is an obscure. It is referenced in the amended defence to the cross-claim in support of the contention of Dr Ponraj that the Agreement was “brought to an end” pursuant to the notice of 17 September 2020 on the basis that at an earlier point in time, the respondent in association with 4Cyte Pathology had used, or cause to be used, the provider number allocated to Dr Ponraj in order to request pathology tests without the knowledge or authority of Dr Ponraj. The contention as pleaded is that this conduct amounted to a breach of the Agreement, being interference with the provision of medical services by, and the clinical judgement of, Dr Ponraj.

165    A primary difficulty that is faced by Dr Ponraj is that his notice of 17 September 2020, makes no reference to this contention. Expressly that notice is confined to the contractual termination mechanism at cl 15.2 which requires the giving of notice that specifies the serious breach alleged to have been committed by the respondent, and which affords a period of 14 days to remedy the breach. It is simply not open to Dr Ponraj to retrospectively rely upon these matters as relevant to the content of his notice.

166    Further, there is insufficient evidence for me to make any finding as to what, precisely, occurred and whether any breach of the Agreement was committed by the respondent in relation to the pathology issue.

167    Finally, there is another problem that Dr Ponraj faces in his contention that he effectively terminated the Agreement before the respondent delivered its notices. The Agreement does not contain an automatic termination provision. Clause 15.2 is in two parts. A notice which specifies the serious breach must be given. It is only if the respondent fails to remedy that breach within 14 days of receipt, that Dr Ponraj may end the Agreement “immediately by notice in writing”. The clause required Dr Ponraj to elect to terminate if he formed the view that the respondent did not remedy his identified breach, or breaches, within the 14 day period. There is no evidence of communication of any election on the part of Dr Ponraj to terminate the Agreement, either orally or in writing.

168    For these reasons, I have concluded that Dr Ponraj did not have a right to terminate the Agreement because the factual foundation to do so did not exist, the respondent had not breached the Agreement as contended and, in any event, he failed to comply with the obligation to give notice of his election to terminate.

169    I deal next with the respondent’s claim that it effectively terminated the Agreement.

170    It is not in dispute that Dr Ponraj was absent from the Practice for considerable periods between May and October 2020. What is in dispute is whether the absences were notified or planned and agreed to by the respondent.

171    By October 2020, Ms Wong considered that Dr Ponraj had breached the Agreement by not attending the Practice for extended periods. She sent him a notice of breach dated 2 November 2020. The notice recited the attendance obligations at cll 5  and 6 of the Agreement, specified that between January and October 2020 Dr Ponraj had been absent for 58 days of which 30 were accepted as attributable to the disability, five were planned and accepted and 23 were not. It particularised, inter alia, unauthorised absences of two days in September and on each day between 1 and 26 October 2020. The notice required Dr Ponraj to return to the Practice within 14 days of receipt and resume his “usual roster”, undertake that he would consult patients in person and recommit himself to conducting himself in a professional manner in his dealings with all staff.

172    It is common ground that this notice was received by Dr Ponraj on 2 November 2020, that he did not respond to it and nor did he comply with its requirements within the 14 day period.

173    On or about 19 November 2020, Ms Wong received information to the effect that Dr Ponraj had commenced the provision of medical services at Q1 Medical, Werribee which is not affiliated with the respondent. By conducting a Google search, Ms Wong discovered that Dr Ponraj was listed as a general practitioner at that practice. This caused her to prepare and send a second notice to Dr Ponraj dated 30 November 2020. The first part of that notice does not differ from the notice of 2 November 2020 in relation to the unauthorised absences from the Practice. In addition, this notice drew Dr Ponraj’s attention specifically to cl 5.1(b) of the Agreement which speaks to the exclusive provision of medical services from the Practice. It asserts that Dr Ponraj breached that clause by providing services at Q1 Medical. The notice required Dr Ponraj to cease the provision of medical services at Q1 Medical within 14 days of receipt, return to the Practice and resume his normal roster, undertake to consult with patients in person and recommit himself to conducting himself in a professional manner in his dealings with all staff. The last paragraph warned Dr Ponraj that in the event of non-compliance, the respondent would be entitled to terminate the Agreement and claim damages.

174    It is not in dispute that the notice of 13 November 2020 was received by Dr Ponraj on that day, was not responded to and not complied with. Accordingly, by a further notice addressed to Dr Ponraj dated 3 February 2021, the respondent terminated the Agreement for non-compliance with each notice.

175    In his defence, Dr Ponraj positively asserts that he gave notice to the respondent “of any absences for reasons of injury or otherwise”. It does not particularise what notice was given or when. The documentary evidence of notice of that character from Dr Ponraj is his correspondence of May 2020 and, most relevantly, his email of 12 May which advised an intended absence of six weeks commencing on 29 April 2020. This is not notice of intended absence due to disability for September or October 2020. There were further emails from Dr Ponraj to Ms Wong on 7 August and 16 November 2020. They do not comprise notice of intended absence. There is the notice of breach of 17 September 2020, but it does not constitute notice to the effect that further time was required away from the Practice in order to recover from the disability. And finally on 6 October 2020, Dr Ponraj sent correspondence to Ms Wong which in the second sentence stated that he would not be able to attend the Practice “any more due to obvious reasons as advised by professionals”.

176    I am satisfied that Dr Ponraj did not attend the Practice in breach of his contractual obligations for two days in September and for 19 days in October 2020. The respondent did not agree to his absence on those days and did not waive its contractual rights. I am satisfied that the repeated failure of Dr Ponraj to provide medical services at the Practice in September and October 2020 amounted to a serious breach of a provision of the Agreement within the meaning of cl 15.3(a) in that this is a central term: it is the primary obligation of Dr Ponraj. Accordingly, there was a proper basis to give notice of breach of the Agreement for unplanned and unexplained absences by Dr Ponraj as set out in the notices of 2 and 30 November 2020. I am further satisfied that Dr Ponraj failed within 14 days of each of those notices to remedy those particular breaches by recommencing the provision of medical services at the Practice and that failure entitled the respondent to terminate the Agreement, which right the respondent elected and gave notice of election on 3 February 2021. The Agreement ended on that day without impacting on the respondent’s accrued right to claim damages for breach: McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457.

177    No direct evidence was given to the effect that Dr Ponraj commenced the provision of medical services at Q1 Medical, save for the hearsay evidence contained in the affidavit of Ms Wong. That allegation was not put to Dr Ponraj in cross-examination. It is quite unnecessary that I resolve this separate basis for termination of the Agreement: the respondent is entitled to rely on the failure to attend the Practice ground alone as cl 15.3 speaks to “any” serious breach and does not require that every breach the subject of a notice be established.

178    In this case, cl 15.4 of the Agreement provides a mechanism to calculate an agreed amount of damages in the event of termination by the respondent. It is not said by Dr Ponraj that this is an unenforceable penalty. Conformably with my findings above, the respondent is entitled to damages in the sum of $574,248.58.

Conclusion

179    For these reasons, I order as follows:

1.    The applicant’s claim is dismissed.

2.    The respondent is entitled to judgment on the cross-claim in the sum of $574,248.58 plus interest up to judgment pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) in an amount to be assessed.

3.    The assessment of interest and all consequential orders, including as to costs, is adjourned for further determination.

4.    The parties must file and serve submissions as to all consequential orders including interest and costs within 14 days of the making of these orders, limited to 3 pages, minimum 12 point typeface with one and one half line spacing.

5.    Subject to any further order of the Court, all applications for consequential orders will be determined on the papers.

Associate:

Dated:    22 February 2023