Federal Court of Australia

Myers v Alfred Hospital [2023] FCA 833

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s originating application in the proceeding is dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The applicant seeks an extension of time within which to bring a proceeding against the respondent alleging direct discrimination on the basis of disability. The applicant could have commenced a proceeding by 7 February 2022, being within 60 days of the date of issue of a notice of termination of a complaint made by the applicant to the Australian Human Rights Commission: see, Australian Human Rights Commission Act 1986 (Cth), s 46PO(2). Instead, a further period of six-and-a-half months elapsed before, on 23 August 2022, the applicant sought to engage the jurisdiction of the Court. The question on this application is whether, in the exercise of the Court’s discretion under s 46PO(2) of the Australian Human Rights Commission Act, the Court should allow the applicant further time within which to make an application alleging unlawful discrimination.

Background

2    The applicant claims that the respondent discriminated against her when she attended the Alfred Hospital for a medical appointment and procedure at its Bariatric Clinic on 24 June 2021. At the time, the applicant was suffering from a skin rash on her face. The timing of her attendance coincided with the height of the COVID-19 pandemic, and public and private policies were in place to mitigate the risk of the spread of the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was causing COVID-19, including the requirement to wear masks in public places and elsewhere. The Alfred adopted policies whereby, subject to some exceptions, all persons within the hospital’s premises were required to wear masks or face shields and which promoted social distancing. The applicant had a medical certificate from a medical practitioner dated 21 June 2021 stating that she had a rash that was likely to have been caused by mask-wearing, and that she was advised not to wear a mask until her condition resolved. The applicant alleges that the respondent engaged in conduct said to amount to unlawful discrimination, including making her wear a face shield, making her sit in an isolated cubicle away from the general waiting area, threatening to refuse to provide medical services to her, and providing her with sub-standard medical care. The respondent denies these allegations.

3    The applicant claims that she made a complaint to the Australian Human Rights Commission on the day of the alleged conduct, namely 24 June 2021. Documents before the Court suggest that the applicant made an online complaint to the Commission in late July 2021. The precise date of the complaint is immaterial. A delegate of the President of the Commission issued a notice of termination dated 8 December 2021 pursuant to s 46PH(2) of the Australian Human Rights Commission Act, stating that the delegate was satisfied that there was no reasonable prospect of the matter being settled by conciliation. A letter containing the delegate’s reasons for the termination advised the applicant of her ability to apply to the Federal Circuit and Family Court of Australia or this Court to have the allegations decided by a court. The letter specifically stated that an application to a court must be made within 60 days of the date on the notice of termination.

4    On 23 August 2022, the applicant filed an originating application alleging that the respondent had engaged in conduct that was unlawful pursuant to the Disability Discrimination Act 1992 (Cth) and seeking an extension of time. Apart from the fact that the application was filed out of time, the parties accepted that the applicant was not otherwise required to obtain leave to commence the proceeding: cf, s 46PO(3A) of the Australian Human Rights Commission Act. The argument on the application to extend time proceeded by reference to claims foreshadowed by the applicant in a draft amended originating application dated 10 November 2022, which was indorsed with details of the applicant’s claim in the style of a statement of claim.

The material before the Court

5    The applicant relied upon two affidavits of her own making dated, respectively, 11 November 2022 and 19 January 2023. The applicant also relied on the allegations made in the applicant’s originating application, and the draft amended originating application. The respondent relied upon an affidavit of Ms Greta Helen Marks, a solicitor in the employ of K&L Gates, the firm acting for the respondent, affirmed 1 December 2022. No deponent was cross-examined and no maker of a hearsay representation was required to attend for examination: see, Evidence Act 1995 (Cth), s 166(f).

Overview of the applicant’s claims

6    The applicant claims that the respondent directly discriminated against her on the ground of her disability in relation to access to premises and to the provision of services. The disability by which the applicant claims she was afflicted was the facial skin rash. The relevant definition of “disability” under s 4 of the Disability Discrimination Act is broad, encompassing seven enumerated sub-categories, and includes behaviour that is a manifestation of a disability. Counsel for the applicant submitted that the definition of “disability” would cover a rash, and counsel for the respondent did not seek to put in issue whether, for the purposes of this application, the applicant had a disability at the time of the claimed discrimination on 24 June 2021. The definition of “disability” in s 4 includes the following –

disability, in relation to a person, means:

...

(c)    the presence in the body of organisms causing disease or illness; or

(d)    the presence in the body of organisms capable of causing disease or illness; or

(e)    the malfunction, malformation or disfigurement of a part of the person’s body; or

...

To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.

7    In relation to the allegations of discrimination, the applicant relied on ss 5, 23(b), (d), and (e), and 24(b) and (c) of the Disability Discrimination Act. The relevant provisions are as follows –

5    Direct disability discrimination

(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.

...

23    Access to premises

It is unlawful for a person to discriminate against another person on the ground of the other person’s disability:

…

(b)    in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises; or

...

(d)    by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or

(e)    in the terms or conditions on which the first-mentioned person is prepared to allow the other person the use of any such facilities;

…

24    Goods, services and facilities

It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability:

...

(b)    in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c)    in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

8    Central to the relevant paragraphs of ss 23 and 24, on which the applicant relied, is the concept of direct discrimination in s 5, to which I will return.

The alleged treatment of the applicant at the Alfred Hospital on 24 June 2021

9    The applicant attended the Alfred Hospital in Melbourne on 24 June 2021 for a medical appointment and procedure at its Bariatric Clinic. When she attended the hospital, the applicant was not wearing a face mask. At that time in Victoria, public measures pursuant to directions made under the Public Health and Wellbeing Act 2008 (Vic), and private measures, were in place to restrict the spread of the virus that caused COVID-19. As to the public measures, the Stay Safe Directions (Metropolitan Melbourne) (No 3) made by the Chief Health Officer, and dated 17 June 2021, were in force. Amongst other things, those directions required a person when leaving home to comply with face-covering requirements, which included specifically a requirement to wear a face covering while visiting a hospital. There was an exception if the person “has a physical or mental health illness or condition, or disability, which makes wearing a face covering unsuitable”. Under s 203 of the Public Health and Wellbeing Act it was an offence to refuse or fail to comply with a direction or requirement without a reasonable excuse. As to private measures, the Alfred had its own policies and practices in place which generally required the wearing of masks, subject to various exceptions that included those relating to the clinical setting.

The first alleged incident

10    The applicant claims that, upon her entry into the hospital on 24 June 2021 at approximately 9.30 am she presented to hospital staff a letter from a medical practitioner, Dr Abdul Basit, dated 21 June 2021 explaining that she had a rash on her face. The letter stated that the rash was most likely secondary to wearing a mask, and that the applicant was advised not to wear a mask until her condition resolved. The applicant alleges that that letter was not read by any member of staff.

11    The applicant claims that a hospital worker placed a shield over her face without her consent. There are photographs in evidence showing the applicant wearing a face shield comprising a cushioned band around the top of the applicant’s head with a clear plastic shield extending down the applicant’s face which is supported by the cushioned band. The plastic face shield does not itself appear to be in contact with the applicant’s face. The type of face shield shown by the photographs would be familiar to those living in Melbourne during the height of the COVID-19 pandemic.

12    The applicant claims that placing a shield over her face “amounted to treating the [a]pplicant less favourably than the respondent would treat a person without the rash in circumstances that were not materially different”, and that this amounted to “discrimination against her on the ground of disability in the provision of medical treatment and associated facilities and access to premises”, relying on ss 5, 23(b) and (e), and 24(b) and (c) of the Disability Discrimination Act. The applicant also claims that the conduct of which complaint is made involved a failure “to make reasonable adjustments for the [a]pplicant; which had the effect that the [a]pplicant was, because of the rash, treated less favourably than a person without the rash would be treated in circumstances that are not materially different”. In support of this latter claim the applicant advanced the following particulars, which are set out verbatim –

a)    Failure to read Medical Certificate

b)    Failure to ask Applicant what Medical Certificate related to

c)    Failure to warn Applicant of proposed response to her not wearing a mask

d)    Failure to ask the Applicant whether she consented to response to her not wearing a mask

e)    Negligent roughness in placing face-shield over Applicant’s face

f)    Failure to provide alternatives to face-masks and shields with less detrimental effects on skin

g)    Failure to maintain appropriate policy to avoid the above-mentioned failings

h)    Failure to train workers in interacting with individuals not wearing face-masks, including those suffering from conditions affecting their skin

13    The applicant claims that the face shield caused injuries to her, namely –

(a)    exacerbation of her skin rash;

(b)    blistering;

(c)    a cut to her neck;

(d)    head-aches;

(e)    dry-retching;

(f)    symptoms, being those stemming from a reflux attack, mistaken for a heart attack;

(g)    residual marks, swelling, and lumps on her face; and

(h)    psychological and emotional damage, distress, and humiliation.

14    In support of her claim that she suffered injuries, the applicant produced a letter from Dr Basit, dated 14 February 2022, in which he stated that he examined the applicant subsequent to the claimed incident and noted that the applicant’s face was “swollen, red, and that there was a rash on her face which was painful and very uncomfortable”. The letter noted the presence of small blisters, and stated that the rash required treatment and eventually settled down.

15    The response of the respondent to this and other allegations by the applicant was that it took risk mitigation and safety around the spread of COVID-19 extremely seriously because of its duties of care to staff and patients. The respondent pointed to its written policies and practices requiring screening of staff and visitors, and the wearing of masks subject to exceptions. It submitted that at the time of the applicant’s 24 June 2021 visit, patients at the Alfred included patients who were acutely vulnerable and particularly likely to be adversely affected by COVID-19, and that face shields and procedures for physical distancing for patients not wearing face masks were identified as appropriate risk mitigation strategies, and as a means of reassuring patients and staff at a time when anxiety around the contraction of COVID-19 was extremely high. The respondent maintained that it was standard practice at the relevant time to require the use of face shields by individuals with a face mask exemption, and that patients with face mask exemptions were routinely managed in a separate waiting area for physical distancing purposes.

16    In relation to the applicant’s claimed injuries, the respondent presented in a hearsay form an opinion of Associate Professor Douglas Gin, who is a fellow of the Australasian College of Dermatologists and Head of the Dermatology Department at the Alfred. There was no objection to the evidence in this form: cf, Hamilton v New South Wales [2013] NSWSC 1437 at [35]-[39] (Bellew J). Associate Professor Gin reviewed photographs supplied by the applicant and gave the following opinions, which I set out in summary form –

(a)    the applicant had a fairly severe case of seborrheic dermatitis;

(b)    seborrheic dermatitis is idiopathic, which means it is not caused or triggered by anything in particular, and is a common condition;

(c)    the photographs were not consistent with a reaction – allergic or otherwise;

(d)    rather, the skin condition recorded in the photographs was seborrheic dermatitis;

(e)    the applicant could have had rosacea, but Associate Professor Gin could not see evidence of rosacea in the photographs;

(f)    while the wearing of a face mask might have exacerbated the applicant’s skin condition, the wearing of a face shield would be highly unlikely to have done so;

(g)    any allergic reaction to the face shield would be localised to the hairline where the shield made contact with the skin, and there was no evidence in the photographs of an allergic reaction; and

(h)    he has never seen anyone have a reaction like that alleged by the applicant to a face shield, and no dermatologist would make that connection.

The second alleged incident

17    The applicant claims that once the face shield had been placed over her face, she was directed by Alfred staff to the Bariatric Clinic where another worker at the hospital directed her to sit in a cubicle. The applicant alleges that she was weighed by a nurse, and then directed to return to the cubicle to wait for a doctor. The applicant claims that the requirement to wait in a cubicle amounted to treating her less favourably than the respondent would treat a person without a rash in circumstances that were not materially different and that this amounted to direct discrimination against her on the ground of disability in the provision of medical treatment and associated facilities and with respect to access to premises, relying on ss 5, 23(b), (d) and (e), and 24 of the Disability Discrimination Act. The applicant also claims that the alleged conduct involved a failure “to make reasonable adjustments for the [a]pplicant; which had the effect that the [a]pplicant was, because of the rash, treated less favourably than a person without the rash would be treated in circumstances that are not materially different”. In support of this latter claim, the applicant advanced the following particulars, which are set out verbatim –

a)    Failure to assess whether it was necessary to require the Applicant to wait in the cubicle

b)    Failure to allow the Applicant to wait in an area which was less isolated and distressing

c)    Allowing or maintaining a level of heat in the cubicle which increased irritation to skin on the Applicant’s face

d)    Allowing or maintaining a level of brightness of lighting in the cubicle which also increased irritation to skin on the Applicant’s face

e)    Isolating Applicant in the cubicle when she required attention to damage to her face from shield and emotional distress

f)    Failure to maintain appropriate policy to avoid the above-mentioned failings

g)    Failure to train workers to avoid the above-mentioned failings

18    In relation to this second alleged incident, the respondent maintained the position summarised at [15]-[16] of these reasons.

The third alleged incident

19    The applicant claims that she asked nursing staff on two occasions whether she could remove the face shield because she had a medical certificate, and was told that she could not. Further, she says that she telephoned the Alfred whilst waiting in the cubicle, seeking to speak with the Chief Executive Officer about her medical certificate and the shield, but the individual who answered the telephone terminated the call without further discussion.

20    On the basis of the alleged conduct just described, the applicant claims that refusing to allow her to remove the face shield amounted to treating her less favourably than the respondent would treat a person without the rash in circumstances that were not materially different and that this amounted to discrimination against her on the ground of disability in the provision of medical treatment and associated facilities and with respect to access to premises, relying on ss 5, 23(b) and (e), and 24 (b) and (c) of the Disability Discrimination Act. As with other complaints, the applicant also claimed that the alleged conduct involved a failure to make reasonable adjustments for the applicant in terms similar to that advanced in respect of the other alleged incidents. In support of this latter claim, the applicant advanced the following particulars, which again are set out verbatim –

a)    Failure to read Medical Certificate

b)    Failure to ask Applicant what Medical Certificate related to

c)    Failure to examine whether the shield has been placed on the Applicant in a manner which would minimise the risk of injury or distress

d)    Failure to provide alternatives to face-masks and shields with less detrimental effects on skin

e)    Failure to maintain appropriate policy to avoid the above-mentioned failings

f)    Failure to train workers in interacting with individuals not wearing face-masks, including those suffering from conditions affecting their skin

21    In relation to the third alleged incident, the respondent also maintained the position summarised at [15]-[16] of these reasons.

The fourth alleged incident

22    The applicant claims that she was seen by a doctor, at approximately 12.00 pm. There is different evidence as to the time at which the applicant was seen by the doctor, but that is not material to this application. The applicant claims that the doctor inquired as to how her day had been and that she expressed her dissatisfaction with her experiences that day by stating that she was “quite annoyed and pissed off”. The applicant alleges that the doctor said that she should stop threatening him, otherwise he would not see her. The applicant claims that by the doctor suggesting that he might refuse to continue to treat her, she was treated less favourably than the respondent would treat a person without a disability in circumstances that were not materially different, and that this alleged treatment amounted to direct discrimination against her on the ground of disability in the provision of medical treatment and associated facilities, relying on ss 5, and 24(b) and (c) of the Disability Discrimination Act. Unlike the other alleged incidents referred to above, the applicant makes no alternative claim on the basis of an alleged failure to make reasonable adjustments.

23    In relation to the fourth alleged incident, the respondent maintained the position summarised at [15] of these reasons. In addition, it relied on information that the doctor concerned reported that his encounter with the applicant was quite upsetting, and that the applicant had been quite aggressive, belligerent, and difficult.

The fifth alleged incident

24    The applicant claims that when she was with the doctor she again asked that she be permitted to remove the face shield because she had a medical certificate, but the doctor refused to allow her to do so. Again, the applicant claims that this constituted direct discrimination on the basis of her disability because it amounted to less favourable treatment in the context of access to medical premises or medical services than she would have received, in circumstances not materially different, had she been an individual without her facial skin rash. The applicant relied in this respect on ss 5, 23(b) and (e), and 24(b) and (c) of the Disability Discrimination Act. The applicant claims also that the conduct alleged involved a failure to make reasonable adjustments, advancing particulars in the same terms as those relating to the third alleged incident.

25    In relation to the fifth alleged incident, the respondent maintained the same position summarised at [15]-[16] of these reasons.

The sixth alleged incident

26    The applicant next claims that the doctor performed a medical procedure whereby 2 mls of fluid were removed from the applicant’s gastric band. She claims that she was advised, upon a subsequent attendance at the Royal Melbourne Hospital some five days later, that only 1 ml of fluid should have been removed from the band and that the band had not been flushed during the 24 June procedure, with the result that she had had a reflux attack. The applicant claims that the doctor’s performance of the procedure in the way described constituted direct discrimination in the context of access to medical services on the basis of her disability because it amounted to less favourable treatment than she would have received, in circumstances not materially different, had she been an individual without her facial skin rash. The applicant relies on ss 5 and 24 of the Disability Discrimination Act. The applicant does not make an alternative claim on the basis of the absence of reasonable adjustments with respect to her claims relating to the doctor’s medical treatment.

27    In relation to this sixth alleged incident, the respondent maintained the position summarised at [15]-[16] of these reasons. The respondent also relied on the doctor’s notes that it produced which record that 2 mls of fluid were removed at the applicant’s request.

The alleged incidents generally

28    The applicant alleges that the individuals involved in the alleged incidents were employed, or retained, by the respondent or authorised by it to provide medical or associated services and facilities and otherwise to administer the activities of the hospital. Accordingly, the applicant claims that the respondent caused, instructed, induced, aided, or permitted the alleged impugned acts, for the purposes of s 122 of the Disability Discrimination Act. Further, or in the alternative, the applicant alleges that the respondent engaged in the claimed conduct by a director, employee, or agent of the respondent within the scope of his or her actual or apparent authority. On the basis of either or both of the alternatives just described, the respondent claims that she has suffered loss or damage and therefore, pursuant to s 46PO(4)(d) of the Australian Human Rights Commission Act, she is entitled to damages to compensate her for the claimed loss and damage to which I referred at [13] above, which the applicant alleged resulted from all the conduct the subject of her claims.

Other avenues pursued by the applicant

29    In addition to the complaint to the Australian Human Rights Commission, the applicant pursued a number of other avenues, including: (1) a report to Victoria Police which involved making a statement; (2) a complaint to the Victoria Police Conduct Unit claiming lack of progress in investigating the subject matter of the applicant’s report to the police; (3) a complaint to the Victorian Ombudsman; (4) an endeavour to commence a proceeding in the Supreme Court of Victoria, which the applicant did not pursue; (5) a proceeding that the applicant commenced in the Magistrates’ Court of Victoria alleging unlawful discrimination, which on 12 August 2022 was struck out for want of jurisdiction; (6) a complaint to the Health Complaints Commissioner; (7) a complaint to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability; (8) a complaint to the Victorian Human Rights Commission; (9) a complaint to the Victorian Independent Broad-based Anti-corruption Commission (IBAC); (10) a complaint to the Australian Health Practitioner Regulation Authority (AHPRA); and (11) a complaint to the National Health Practitioner Ombudsman concerning the conduct of AHPRA.

The applicable principles relating to extensions of time

30    In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 403 ALR 604 (Tu’uta Katoa), the High Court considered this Court’s discretion to extend the time for the making of an application to the Court under s 477A(2) of the Migration Act 1958 (Cth) in the context of determining whether there was jurisdictional error by a judge of this Court in considering an application under s 477A(2). Relevantly, that power was conditioned on the Court being “satisfied that it is necessary in the interests of the administration of justice to make the order” which involves an evaluative judgment thereby rendering the decision discretionary: see, Tu’uta Katoa at [10] (Kiefel CJ, Gageler, Keane, and Gleeson JJ). It was held that no mandatory relevant considerations arose in relation to s 477A(2) of the Migration Act. Having concluded that the evaluation under s 477A(2) did not require any particular considerations to be taken into account, the plurality referred to the “well established principles guiding decisions whether to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)”, citing with approval the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 (Hunter Valley). Paragraph 11(1)(c) of that Act, like s 46PO(2) of the Australian Human Rights Commission Act, provides for a discretion to extend time to bring the relevant application that is unfettered.

31    The decision of Wilcox J in Hunter Valley has been repeatedly cited with approval by the Full Court of this Court in a variety of contexts involving statutory discretions to extend time. Specifically, it has been applied by judges of this Court in applications under s 46PO(2) of the Australian Human Rights Commission Act: see, Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624; 151 FCR 524 at [11]-[12] (Cowdroy J); Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [21]-[24] (Weinberg J); Ferrus v Qantas Airways Ltd [2006] FCA 812 at [19] (Collier J); Stepien v Department of Human Services [2018] FCA 1062 (Stepien) at [22] (Mortimer J); and Chircop v Technical and Further Education Commission [2022] FCA 1015 at [72] (Katzmann J). Indeed, in Stepien, Mortimer J held at [22] that the discretion in s 46PO(2) is of the same character as that to be found in s 11 of the Administrative Decisions (Judicial Review) Act that was considered by Wilcox J in Hunter Valley, and that Hunter Valley had become the classic authority on the kinds of considerations which should be taken into account by a court in determining how to exercise a discretion to extend time. Importantly, Mortimer J also observed at [21] that discretionary powers such as the one in s 46PO(2) “inevitably involve consideration of what is in the interests of the administration of justice, that being the Court’s core function”.

32    In Hunter Valley at 348-349, Wilcox J identified a number of factors that may inform whether the Court should exercise its discretion to enlarge time. The factors identified constitute guidance, and are not exhaustive. The particular considerations identified by Wilcox J which are of relevance to the present case are –

(a)    the Court will not grant an extension unless positively satisfied that it is proper to do so;

(b)    the prescribed period, which in this case is 60 days, is not to be ignored;

(c)    prima facie, the very existence of a prescribed period presumptively implies that an application brought outside of that period should not be entertained and, therefore, it will be at least necessary for an applicant to show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;

(d)    any action taken by an applicant, other than making the relevant application in relation to which an extension of time is sought, may be relevant to the acceptability of the explanation for the delay;

(e)    any prejudice to a respondent occasioned by the delay is a material factor militating against the grant of an extension, noting that the mere absence of prejudice to the respondent is not enough to justify the grant of an extension because public considerations may intrude; and

(f)    the merits of the substantial application, being the application in respect of which the applicant seeks an extension of time, are properly to be taken into account.

33    In Stepien, Mortimer J at [23] distilled the principal matters to which Wilcox J referred as being three: (1) any explanation for the delay; (2) any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted; and (3) the prospects of success of the appeal if an extension of time were to be granted. To these matters I add that the exercise of a discretion with no express fetters will be lawful where it is within the bounds defined by the subject matter, scope, and purpose of the legislation conferring that discretion: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 505 (Dixon J); R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; 144 CLR 45 at 49; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (French CJ). Therefore, the exercise of the discretion to extend time under s 46PO(2) might permissibly take account of those features of the Australian Human Rights Commission Act. In terms of the history of s 46PO, the section was inserted by the Human Rights Legislation Amendment Act (No. 1) 1999 (Cth). The Australian Human Rights Commission was then known as the Human Rights and Equal Opportunity Commission. The presumptive time limit in s 46PO(2), as inserted by the 1999 amending Act, was 28 days. That time limit was amended to 60 days by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth). The Minister’s Second Reading Speech for the 2009 amending Act noted –

Another key amendment to [the Australian Human Rights Commission Act] is to extend from 28 days to 60 days—that is, to more than double—the period in which a person can take a complaint to the Federal … Court after it is terminated by the commission [sic]. This gives effect to another recommendation of the Productivity Commission’s report.

34    The Productivity Commission report to which the Minister referred is Report No. 30: Review of the Disability Discrimination Act 1992, published 30 April 2004 which addressed the issue of time limits. It appears from the Productivity Commission report that the concern was to balance two competing policy goals. On the one hand, the time limit for bringing an application to this Court should not be so short as to make it unjust upon those wishing to invoke the Court’s jurisdiction by forcing such persons to scramble to put together their applications. On the other hand, the time limit should not be of such a size as to act unjustly towards respondents. The report noted the interest of respondents in certainty as to the finality of claims, and their interest in there being a relatively short time limit so as to ensure the availability of the relevant personnel and documentation germane to defending any application which may be made. Ultimately, the Productivity Commission report recommended that the appropriate balance between these competing sets of interests was to be achieved by increasing the time limit to 60 days. These considerations give complexion to Wilcox J’s statement in Hunter Valley that the time limit is not to be ignored.

The parties’ submissions

35    I will summarise the parties’ submissions by reference to particular factors.

The applicant’s submissions

The reasons for the delay in bringing the originating application

36    The applicant offered a number of reasons for her delay in bringing the originating application. First, the applicant deposed in her affidavit dated 11 November 2022 that she had found it difficult to concentrate and to process information since the alleged events of 24 June 2021. The applicant stated that her symptoms led to her obtaining a referral to a psychologist who diagnosed her with an anxiety-related condition. That condition, and its effects upon her mental faculties, are said to provide some explanation for her delay in filing the originating application. They are also said to explain her failure to comprehend the fact that the letter accompanying the notice of termination of the applicant’s complaint stated expressly that any application to this Court pursuant to s 46PO(2) of the Disability Discrimination Act had to be brought within 60 days. In this regard, the applicant relied on the decision in Culpin v Scandinavian Tobacco Group Australia [2013] FCCA 1666, arguing that that decision stands for the proposition that a lack of clarity of thought, stemming from a diagnosed psychiatric condition, is a consideration which is relevant to determining whether the delay in bringing an application is justified.

37    Second, the applicant submitted that she found the process of determining the appropriate body before which to bring her complaint for unlawful discrimination to be a confusing one. She said that this was partially a function of her anxiety-related condition and the general difficulty which an individual, in circumstances such as hers, faces when seeking to identify the appropriate institution before which an unlawful discrimination complaint is to be made or escalated. She pointed to the fact that she had contacted several bodies about her complaint prior to her receipt of the notice of termination from the Commission as evidence that she found the determination of the appropriate body to be a difficult task. Further, the applicant stressed that her communications with bodies other than the Commission and this Court, prior to her receipt of the notice of termination, were frequent and often of her own initiative by way of follow-up, such that “[s]he repeatedly attempted to make known her desire to have her substantive complaint promptly dealt with [sic]”.

38    Third, after receipt of the notice of termination which was accompanied by the letter alerting the applicant to the 60-day time limit within which to bring an application to this Court, the applicant claimed that –

(a)    she sought to advance her claim via various bodies outside of the Court, being the National Health Practitioner Ombudsman, the AHPRA, Victoria Police, the Victoria Police Conduct Unit, the Victorian Ombudsman, and the Victorian Supreme Court;

(b)    she made an attempt to file a proceeding in the Supreme Court of Victoria; and

(c)    she contacted a number of law firms, namely Maurice Blackburn, Slater and Gordon, and Shine Lawyers.

39    Fourth, the applicant submitted that after the expiry of the 60-day period –

(a)    she again sought to advance her claim before bodies other than this Court, namely the Supreme Court of Victoria, Victoria Police, Queensland Police, the Royal Commission into Abuse of People with Disabilities, and the Magistrates’ Court of Victoria; and

(b)    lodged a complaint, which was formally deficient, with the Magistrates’ Court of Victoria on 9 March 2022, which was later filed on 23 March 2022 after the applicant lodged an amended version of the claim to correct its original deficiencies, which made reference to a claim for discrimination on the ground of disability, including in relation to the absence of the making of reasonable adjustments, under the Disability Discrimination Act. As I stated earlier, that claim was struck out on 12 August 2022 for want of jurisdiction.

40    These second, third, and fourth matters were relied upon by the applicant to contend that she actively sought to further her claim for unlawful discrimination, before receiving the notice of termination, during the 60-day period after receiving the notice, and further still after the expiry of that 60-day period. All of the four matters referred to above were broadly relied upon by the applicant as providing a cumulative explanation for her delay in bringing her originating application.

Prejudice to the respondent

41    The applicant submitted that the respondent has suffered insufficient prejudice from her delay to warrant the Court’s refusal to grant an extension of time. The applicant says that the respondent was “aware from the outset” that she was dissatisfied with the alleged events of 24 June 2021, given that she claims that she made a complaint to the Commission that very day and made a series of further complaints to, and inquiries of, other relevant bodies, of which she claimed the respondent was aware (note my observations about the apparent date of the complaint at [3] above). Accordingly, it was said, the respondent was aware from 24 June 2021 of the nature of the applicant’s factual case against it and, therefore, the respondent should have “collect[ed] and preserve[d] relevant evidence with respect to the incident on 24th June 2021”. The applicant claimed that any prejudice said to arise from any failure of the respondent to collect and preserve such evidence lay at the feet of the respondent.

The substantive merits of the originating application

42    The applicant contended, citing Matthews v Markos [2019] FCA 1827 (Abraham J), that she need only demonstrate that her case is reasonably arguable, as opposed to fancifully so, with the relevant merits to be judged at an impressionistic level, as opposed to a level of granular particularity which generally occurs at the trial of a substantive claim for the purposes of final determination. The applicant submits that her case is reasonably arguable by reference to the following facts –

(a)    that, as at 24 June 2021, she was suffering from a facial rash which constituted a “disability” according to the definition of that term in s 4 of the Disability Discrimination Act;

(b)    that on 24 June 2021, the respondent provided services to the applicant within the meaning of s 24 of the Disability Discrimination Act; and

(c)    that the Alfred’s premises in Commercial Rd Melbourne constituted “premises that the public or a section of the public is entitled or allowed to enter or use” within the meaning of s 23 of the Disability Discrimination Act.

43    Further, the applicant submitted that the fact that she alleges that she was forced to wear a face shield whilst suffering from a skin rash, which she claimed provided a basis for her medical exemption vis-à-vis facial coverings generally, requires a “full evidentiary hearing” so as to resolve the factual disputes between the parties. The applicant submitted that such a determination is key to judging the ultimate validity of her claim and, therefore, militates in favour of the Court granting an extension of time so that a full evidentiary hearing may elucidate the relative merits of the parties’ cases which, at present, are subject to some epistemic uncertainty.

Additional relevant considerations

44    The applicant contended that the public interest is a relevant consideration which militates in favour of her being granted an extension of time. She asserted that her claim is made in good faith and this, construed against the relevant objects of the Disability Discrimination Act, namely the elimination of discrimination, the securing of equality, and the promotion of recognition and acceptance within the community of the principle that those with disabilities possess the same fundamental rights as all other individuals, provide additional factors which militate in favour of the Court granting her application for an extension of time.

The respondent’s submissions

The nature of, and reasons for, the delay in bringing the originating application

45    The respondent submitted that the applicant had not provided an acceptable explanation for her delay in bringing the proceeding.

46    First, the respondent submitted that the applicant was on notice of the time within which she was permitted to bring an application before the Court under s 46PO(1) of the Disability Discrimination Act. That notice is said to flow –

(a)    from the express reference to the 60-day time limit in the letter that accompanied the notice of termination;

(b)    implicitly from the fact that the respondent’s defence to the applicant’s Magistrates’ Court claim, filed 19 April 2022, pleaded want of jurisdiction of that Court to determine the applicant’s claim; and

(c)    expressly from the fact that an affidavit affirmed 13 July 2022, in support of the respondent’s application to strike out the applicant’s Magistrates’ Court claim, stated that the applicant’s claim was required to be brought before the Federal Court of Australia or the Federal Circuit and Family Court of Australia, pursuant to the Australian Human Rights Commission Act.

47    Accordingly, the respondent submitted that the explanation for the delay proffered by the applicant was not acceptable, and that the applicant’s actions indicated that she elected to press her discrimination claim in the forum of the Magistrates’ Court to the exclusion of any claim before this Court.

48    Second, the respondent submitted that where an individual, such as the applicant, chooses “to bring a multitude of complaints in a multitude of fora, it is incumbent upon [such an individual], acting properly and diligently, to carefully review [relevant] correspondence”. The respondent submitted that the applicant, due to her pursuing redress from multiple bodies, should have been astute to correspondence from such bodies and, with that in mind, she failed to act properly and diligently because she did not read and comprehend the reference to the 60-day time limit in the letter that accompanied the notice of termination.

49    Third, the respondent submitted that the length of the applicant’s delay militates against an extension of time being granted because “6.5 months is a considerable delay in the context of a 60 day [sic] limit”. It was submitted that “the longer the delay, the better the explanation needs to be”.

Prejudice to the respondent

50    The respondent disputes that it was aware, from 24 June 2021, of the applicant’s general dissatisfaction and of her complaint to the Commission. I have already referred to the fact that the documentary evidence suggests that the applicant lodged her complaint with the Commission in late July. The respondent says that it was not until 10 November 2021, when it was contacted by the Commission in relation to the applicant’s complaint, that it became aware of the alleged 24 June incident. The respondent submitted that it has suffered prejudice because the passage of time prevented it from having access to CCTV footage of 24 June 2021. It was unclear how this prejudice could be attributed to the delay in commencing the proceeding. However, the respondent submitted that the primary prejudice it has experienced as a result of the applicant’s delay is the burden of the process of having to defend the present proceeding after it had been put to the cost of the Magistrates’ Court proceeding. It acknowledged that such prejudice “is typically cured by a costs order” and suggested that, “[o]n balance, prejudice is arguably a neutral consideration”.

The substantive merits of the originating application

51    The respondent submitted that the applicant’s case lacked sufficient prospects of success to warrant the grant of an extension of time. It relied upon a number of factors in support of that submission.

52    First, it is said that on 24 June 2021, there was a series of public health measures in place to mitigate the spread of the virus, including the Stay Safe Directions (Metropolitan Melbourne) (No 3) dated 17 June 2021 to which I referred earlier. Further, the respondent says that ss 21 and 23 of the Occupational Health and Safety Act 2004 (Vic) required it to ensure, so far as was reasonably practicable, that there was a safe working environment for its employees and that persons other than its employees were not exposed to risks to their health or safety. In this regard, the respondent noted that s 47 of the Disability Discrimination Act provides an exemption – for what would otherwise be unlawful conduct – where the relevant conduct is done in accordance with statutory authority.

53    Second, the respondent submitted that the applicant’s claims were unsupported by evidence, submitting that –

(a)    there was no credible evidence that the applicant could not wear a face shield due to her disability, or that the face shield caused her injury, relying on the opinions of Associate Professor Douglas Gin to which I referred earlier;

(b)    the applicant’s claims regarding having a face shield placed onto her face, and the consequential physical harm she alleges occurred, were not the subject of an incident report or a security report;

(c)    the applicant’s claims regarding being required to wait alone in a cubicle are unlikely to be substantiated; and

(d)    patients required to wear face shields in the Alfred at the time were permitted to wait in the general waiting area along with patients wearing face masks.

54    Third, it was submitted that the Alfred’s policy of requiring face masks to be worn – noting that the applicant was not, in fact, required to wear a face mask but, rather, a face shield – was not directly discriminatory against the applicant because that policy applied universally. Accordingly, it was submitted that any of the treatment which the applicant received on 24 June 2021 was not “because of” her disability as required by subsections 5(1) and (2) of the Disability Discrimination Act.

55    Fourth, the respondent submitted that the applicant’s reasonable adjustments claims were misconceived in the sense that a reasonable adjustment was made for the applicant on the basis of her disability, namely the requirement to wear a face shield as opposed to a face mask.

56    Fifth, and regarding only the sixth alleged incident, the respondent submitted that the applicant’s claim was inconsistent with the contemporaneous clinical note which indicated that 2 mls of fluid were removed at the applicant’s request.

Additional relevant considerations

57    The respondent submitted that one might infer that one of the purposes of the 60-day limit is to ensure that prospective respondents, once the 60-day limit has expired, are entitled to rely upon the presumptive legal certainty and finality indicated by the existence of that limit. As counsel for the respondent submitted at the hearing, a respondent before the Commission, after the termination of the relevant applicant’s complaint and the effluxion of 60 days, might be entitled to assume “well, that’s over, we can close the file”. There is some overlap between this submission and the question of prejudice – that is, that prejudice may occur to a respondent, who has relied upon the expiration of the time limit as indicating the end of the risk of litigation being brought against it, where that respondent is once again exposed to litigation and all of what comes with defending a legal proceeding as a result of a grant of an extension of time. At the hearing, counsel for the respondent made submissions of the sort just discussed in the context of prejudice as a relevant consideration.

Consideration

The nature of, and reasons for, the delay in bringing the proceeding

58    The applicant’s evidence that her claim is made in good faith was unchallenged. So too was her evidence that she did not see the reference to the 60-day time limit in the letter from the Commission until it was specifically drawn to her attention on 25 October 2022. The applicant’s persistent efforts to seek redress for her grievances through all the channels to which I referred at [29] above provide circumstantial support for the applicant’s evidence that she did not take notice of the 60-day time limit that was referred to in the letter of 8 December 2021 that accompanied the termination of her complaint. I therefore accept the applicant’s evidence of her reasons for the delay in commencing a proceeding. However, the acceptance of the applicant’s evidence does not carry with it a conclusion that her explanation is acceptable, when viewed objectively. Weight must be given to the fact that there is a prima facie 60-day limit, which the applicant exceeded by a considerable margin, and where she must bear some responsibility for her oversight. This is not a circumstance where the applicant is “without fault”: see, Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541 (Taylor) at 555 (McHugh J). The practical consequence of this interim conclusion is to direct greater attention to questions of prejudice and merits.

Prejudice to the respondent

59    Prejudice to a respondent may exist generally. For instance, in Taylor, the High Court considered whether the discretion under s 31 of the Limitation of Actions Act 1974 (Qld) should have been exercised to grant an extension of a limitation period. In addressing the question of prejudice, McHugh J at 556 stated that long delay may give rise to a presumption of prejudice. The nature and extent of any prejudice is fact-dependant, and specific prejudice may carry greater weight than general prejudice. Further, general or presumed prejudice may carry more weight where the delay is lengthy as opposed to a short delay. Here, the respondent argued the question of prejudice only faintly, and accepted that prejudice was arguably a neutral consideration. I agree.

The merits of the applicant’s claims

60    I have concluded that the applicant’s claims of contravention of the Disability Discrimination Act are not of sufficient merit to justify an extension of time to bring the proceeding, and that it would not be in the interests of the administration of justice to allow it to proceed.

61    The applicant’s claims in respect of the six alleged incidents are advanced on the ground that there was direct discrimination, which is defined by s 5 of the Disability Discrimination Act in the terms which I set out at [7] above. A precursor to the current s 5(1) was considered by the High Court in Purvis v State of New South Wales [2003] HCA 62; 217 CLR 92 (Purvis). The differences between the subsections are not material to the authority of Purvis for present purposes. Gleeson CJ, who joined in the Court’s orders but wrote separately, observed at [7] that the discrimination with which the Act is concerned is discrimination that is unjust and unlawful, and referred to the importance of context to the determination of whether discrimination against a person has occurred. Gummow, Hayne and Heydon JJ referred at [224] to the requirement of s 5(1) to identify all the circumstances.

62    In this case, context is important. I have already referred to the directions in force under the Public Health and Wellbeing Act. It is impossible to ignore that the respondent was providing medical services in June 2021 when there was a public health emergency on foot in relation to a disease caused by a contagious virus that resulted in the death of vulnerable people. Staying with the legal context, in addition to the specific obligations arising under various directions given by the Chief Health Officer, the respondent had stringent legal obligations as an employer, as an occupier, and had non-delegable duties of care to all its patients as the operator of a public hospital. It is also obvious that the consistent application of hospital policies addressing the COVID-19 risk would have been desirable in order to maintain staff morale and to create an environment where the apprehensions of staff, patients, and any visitors, were minimised. In the above legal and practical context, it would be counter-intuitive, and indeed it would offend common sense, to think that the respondent discriminated against the applicant in the way alleged because it took the protective measures of requiring the applicant to wear a face shield instead of a face mask, and directed her to a cubicle rather than a public waiting area. These were but particular implementations of policies and practices directed to requiring all persons on the hospital premises to take reasonable measures for the safety of others, and for their own safety, so as to minimise the risk of transmission of the virus.

63    Section 5(1) of the Disability Discrimination Act directs attention to whether there is less favourable treatment “because of the disability”. This requires that a comparison be made. Here, the disability on which the applicant relies is a physical disability, namely the rash on her face as alleged in [2] of the draft amended originating application, which I take to include any behaviour that is a symptom or manifestation of the disability. Counsel for the applicant did not identify which component of the definition of “disability” in s 4 was engaged, but it may be assumed for present purposes that at least (c), (d), and (e) were arguably engaged. The comparison to be made is between persons with and without a facial skin rash. It has not been shown that there is any arguable case that the applicant, by reason of her skin rash, was treated any less favourably than any other person who attended the hospital. Under hospital policies and practices all persons entering the hospital were required, subject to various exceptions, to wear some sort of facial protection, to submit to screening, and to abide by social-distancing guidance. It is not at all clear how a face shield is less favourable, or that in the circumstances, waiting in a cubicle, where waiting alone routinely occurs in hospitals, could reasonably be regarded as less favourable treatment by any proper comparison.

64    Further, s 5(1) must be read with subsections (2) and (3), which bring within the concept of discrimination a failure to make reasonable adjustments with the effect that, because of the disability, the person is treated less favourably than a person without a disability in circumstances that are not materially different. This is in essence a failure to compensate for a disability. Section 5(3) provides that circumstances are not materially different merely because of the fact that the person with a disability requires that adjustments be made. At least in this case, the implementation of any requirement to make reasonable adjustments for the applicant by requiring her to wear a face shield rather than a face mask, and directing her to a cubicle rather than the general waiting area on the assumption she was not wearing a face mask, could not reasonably be characterised as discrimination against the applicant. The purpose of the adjustments was to accommodate the fact that the applicant did not wear a face mask because she possessed a medical opinion that advised that she should avoid wearing a face mask until her skin condition resolved. The alternative might have been to refuse the applicant entry to the hospital premises and to refuse her treatment. That did not occur because the practices of the respondent accommodated the applicant’s position by requiring her to wear a face shield instead of a mask. Nor, in my view, is there any reasonable case that the respondent failed to make reasonable adjustments for the applicant’s disability. In this regard there is no sufficient evidence that, viewed prospectively at the time, it was unreasonable for clinical or any other reasons to require the applicant to wear a face shield, or to wait in a cubicle, notwithstanding her skin condition.

65    In relation to the fourth incident that is the subject of the applicant’s claims, there is no reasonable case that the doctor treated or proposed to treat the applicant less favourably than a person without the applicant’s claimed disability by reason of that disability. At its highest, the evidence suggests that there was a conversation between the applicant and the doctor in which the applicant expressed her dissatisfaction with her experiences by stating that she was “quite annoyed and pissed off”, which the doctor perceived was conveyed in a threatening tone, upon which he asked the applicant to desist or he would not see her. The applicant also alleges that the doctor’s performance of a procedure where 2 mls rather than 1 ml of fluid were removed from her gastric band constituted direct discrimination. This strikes me as fanciful. Even assuming, for the purposes of analysis, that the applicant was advised by another medical practitioner at the Royal Melbourne Hospital that only 1 ml of fluid should have been removed, and that the gastric band had not been flushed, this does not speak to whether the applicant was treated less favourably at the Alfred because of her skin rash and inability to wear a face mask.

66    As to the loss and damage that the applicant claims that she has suffered, I am not satisfied that there is a reasonable case that the damage alleged was because of any conduct of the respondent amounting to unlawful discrimination. While this application was not the trial of the proceeding, and the parties were not required to bring forward their entire evidentiary cases, the opinions of Associate Professor Gin which I summarised at [16] were unchallenged. Given those opinions, there was at least some onus on the applicant to advance a contradictory medical case so as to raise a reasonable triable issue in relation to those opinions. Further, even on the assumption that the applicant sustained injury as a result of the requirement to wear a face shield, or to wait in a cubicle at the hospital, I am not satisfied that there is a reasonable case that this was because of any unlawful discrimination, as distinct from injury that might have been incidental to the application and wearing of the face shield, or the state of the air-conditioning in the cubicle, or as a result of what appears to have been the applicant’s general state of agitation while on the hospital premises.

Conclusions

67    There is insufficient merit in the application to justify an extension of time. That evaluation is against the background of the significant delay by the applicant of six-and-a-half months for which no responsibility may be attributed to the respondent. For these reasons, I refuse the applicant’s application.

68    I will hear the parties on costs.

Pro bono counsel

69    The applicant was initially self-represented in this application. Mr Rolf Sorensen of the Victorian Bar accepted a referral from the Court to give pro bono assistance to the applicant. Mr Sorensen undertook a considerable amount of work, including drawing the proposed amended originating application, two affidavits, written submissions, and his appearance before the Court at the hearing of the application. This had the result that the applicant’s case was presented in a very organised and coherent way that was of great assistance. Mr Sorensen is to be commended for the service that he provided.

Associate:

Dated:    24 July 2023