Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99 (21 April 2010)

Last Updated: 21 April 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99


DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
APPLICANT
Julie Hubbard

RESPONDENT
Roads and Traffic Authority of NSW



FILE NUMBERS:
081134

HEARING DATES:
15 and 16 February 2010

SUBMISSIONS CLOSED:
16 February 2010



DATE OF DECISION:
21 April 2010

BEFORE:
Huntsman C - Judicial MemberSchneeweiss J - Non-Judicial Member Weule B - Non-Judicial Member





LEGISLATION CITED:
Ss4, 49A, 49B, 49M, 54 of the Anti-Discrimination Act 1977

CASES CITED:
Marsden v Human Rights and Equal Opportunity Commission [2000] FCA 1619
Carr v Botany Bay Council [2003] NSWADT 209

TEXTS CITED:


APPLICATION:


MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person
RESPONDENT
K Eastman, barrister


ORDERS:
The application is dismissed


Reasons for Decision:

REASONS FOR DECISION

1.This was an application by Ms Julie Hubbard, under the Anti-Discrimination Act 1977, by which she maintains that she had been discriminated against, on the grounds of disability or presumed disability, by the Roads and Traffic Authority of NSW (the RTA). Specifically Ms Huppert alleges that she was discriminated against by the RTA, on the grounds of disability and/or presumed disability, in the provision of services by the RTA in relation to Ms Hubbard’s drivers licence.

2.The Respondent, the RTA, states that the application should be dismissed.

Background to the application

3.On 29 February 2008 the Anti-Discrimination Board received a complaint from Ms Julie Hubbard, the Applicant, against the Roads and Traffic Authority of NSW (RTA), the Respondent. Ms Hubbard alleged that the Roads and Traffic Authority discriminated against her on the basis of her disability (actual and presumed) in the provision of goods and services. The Applicant claimed that her NSW drivers licence was suspended pending a medical report and claimed that although she complied with all of the RTA's requests they refused to return her licence. After proceedings at the Anti-Discrimination Board, Ms Hubbard requested, on 28 November 2008, that the matter be referred to the Equal Opportunity Division of the Administrative Decisions Tribunal (the Tribunal) for a hearing. The report of the President of the Anti-Discrimination Board, states the complaints appeared to fall within the sections 49 A, 49B, 49C, 49M, 52 and 53 of the Anti-Discrimination Act 1977 (NSW). The period of the complaint was stated as 20 May 2005 to 29 February 2008.

The Applicant's case

4.Ms Hubbard's case is set out in her written submissions to the Tribunal. Ms Hubbard also presented written and oral evidence to the Tribunal and written statements from witnesses, as detailed below. In the written submissions and a personal statement Ms Hubbard stated:

SUMMARY OF COMPLAINT -

Introduction:

I. PARTlES AND JOINDER:

The Applicant is Julie Hubbard.... of [address]. The Respondent is Roads and Traffic Authority of NSW; as represented by [lawyers].

II. JURISDICTIONAL ISSUES:

The complaint as accepted by the President of the ADB ii the letter and attached documents at Tab 1 of the President's report and that is the complaint referred to.

III. IDENTIFICATION OF COMPLAINT

The enquiry is into one complaint.

The complaint is an allegation of implied disability (S 49M Anti-Discrimination Act),which was made on 29/02/08 and relates to conduct from the period of 20/05/05 to 29/02/08

There are three parts to the complaint, that of:

i) Disability:

a) presumed disability to drive a motor vehicle

b) presumed drug dependence and

c) presumed psychiatric disorder

ii) Conduct: suspension of and refusal to reinstate NSW Driver's Licence

iii) Direct Discrimination:

IV. IDENTIFICATION OF DEFENCES:

The Respondent did not act under the statutory authority of s 54 Road Transport

(General) Act 2005 S 243(4)

V. LEGAL AND FACTUAL ISSUES:

Factual matters to be resolved include:

Admission of discriminatory behaviour regarding the following assumed disability and monetary compensation for same:

a) presumed disability to drive a motor vehicle

b) presumed drug dependence and

c) presumed psychiatric disorder

Legal issues that arise include are:

Abuse of regulatory power and statutory authority in regard to suspension of driver's licence without adequate supporting evidence and failure to reinstate driver's licence after medical assessments proving fitness to drive.

.... As per attached document in response to RTA - Post ADB Conciliation Conference, 'Cost Analysis", I wish to be compensated financially for the costs incurred, pain and suffering, loss of potential employment, economic loss, increased dysfunction and emotional stress.

PERSONAL WITNESS STATEMENT - MS JULIE HUBBARD

In 2005, the Roads and Traffic Authority unfairly suspended my drivers licence until 1 July 2008. They refused to consider medical reports and relevant information regarding the fit state of my health and ability to drive.

I therefore have complied and am submitting various documents as evidence that I was fit and able to drive, I was not and am not drug or alcohol dependent nor do I not have any psychiatric disorder. The actions taken by the RTA to suspend my driver's licence without proper information and then refuse to reinstate it in light of various medical assessments proving my fitness to drive; constitutes harassment and discrimination in the extreme.

As a result of the ongoing action by the RTA, I suffered emotional and physical impairments and was extremely disadvantaged financially. Conciliation processes with the Anti-Discrimination Board and the Administrative Decisions Tribunal have failed, due to the RTA's unwillingness to consult and resolve the issues resulting from their discriminatory actions. I believe that for justice to prevail, I should be adequately compensated for these losses and therefore bring my submission before the Tribunal for their consideration and deliberation on this matter.

5.The Applicant relied also on documents contained in the report of the President of the Anti-Discrimination Board, as detailed further below. She relied also on some of the documents placed in evidence by the Respondent. Detailed written submissions were made by Ms Hubbard in relation to the cost to her of discrimination, and the compensation which should be paid to her. Witness statements were submitted into evidence without objection from the Respondent.

6.A report by Dr Sean Tari of 5 September 2009 states that he first saw Ms Hubbard on November 2006 with a long history of chronic lower back pain:

"She had a L4L5 laminectomy and fixation of lumbar vertebrae in the past. A CT scan showed mild disc bulging in L3 –L4 and L5 –S1 causing back pain for her. She was on Oxycontin and Tramadol for pain relief initially and soon we changed it to Duragesic 100mic patch twice a week and Tramadol as required. She had drug tests on 10 May 2007 and 13 June 2007, and 20 June 2007 all negative. She was seen by drug and alcohol specialist Dr Clubb and he was convinced that there was no indication of substance abuse. I have attached reports from specialists regarding her chronic low back pain".

7.Attached to Dr Tari’s report was a report by Dr Richard Burek, Visiting Psychiatrist, Greater Western Area Health Service of 9 January 2008. This report states that on the assessment of Ms Hubbard, Dr Burek had no recent history apart from a brief note by Dr Tari. Dr Burek states that:

" I understand that in 1996 this lady had a back injury working as an occupational therapist and nurse at Sydney Opera house. There were cases, payouts, and pain specialists. The last put her on Oxycontin 80 mg daily. In 2004, I understand, a general practitioner reported to the RTA as ‘"was worried about levels of usage". She states that her analgesic use was in the context of pain specialists directions. In 2007 she saw a Dr Clubb, pain specialist from Sydney, who ordered 3 urine drug screens which showed her to be clear of opiates. Currently she is taking; Duragesic patch 100 micrograms twice weekly, Neurontin 300 mg 1 nocte, and Tramadol 150 mg 1 mane"......

"....... At interview she was calm, with clear sensorium, alert, and with no psychotic symptoms. On this one assessment and on the verbal history given to me by the patient and by your secretary, it seems reasonable that she regains her licence. Apparently, the patient has a form from the RTA which she didn't bring into the interview"

8.Ms Hubbard also submitted copies of correspondence from various members of Parliament, including correspondence with the local Member of Parliament, and by the Minister for Roads and the Premier of New South Wales. Other documents submitted were from friends to evidence the inconvenience experienced by Ms Hubbard due to loss of her licence. These statements include a statement from Darren Reid of 24 August 2009, Arthur Norton of 6 September 2009 and Lyn Kammerman of 4 September 2009. These statements include references to Ms Hubbard's good character.

9.Ms Hubbard also gave oral evidence to the Tribunal. She stated it all started when she first moved from Sydney to a small town outside of Dubbo, in 2004. After moving she needed to find a local doctor for her ongoing pain management. She described difficulties in finding a doctor who would prescribe the medication which she had been prescribed in Sydney. She found a doctor at Gilgandra hospital who prescribed the medication for her. She states that on one visit he told her that he did not wish to keep prescribing it, and that he may let the RTA know that she may have a drug problem. She said she told him she did not have that problem and that he had a letter from her pain specialist. Ms Hubbard stated that she became aware of what the Doctor had told the RTA when she received copies of RTA documents at the time of seeing the Legal Aid Commission in relation to a local court licence appeal. Ms Hubbard confirmed during her evidence that the document she referred to was an attachment to a statement by the Respondent's witness, Mr Derek Wye, being document DW7. The document DW7 is an adjudication sheet which indicates advice by a Doctor Dabash to HealthQuest (the RTA’s medical advisors).

10.Ms Hubbard stated that the RTA suspended her licence pending a medical review. She states that at this time Dr Crawford had indicated that she was fit to drive. She says that in 2005 the RTA had a medical opinion that she was fit to drive and knowledge of what medicine she was taking and why. She stated the RTA sent her a letter saying they wanted her to see another doctor. She gave the RTA a report from her local general practitioner, Dr Tari. She did some follow up by seeing Dr Clubb. She states the RTA required her to obtain a psychiatrist's report and this was very difficult in a small country town which was isolated. She had to rely on local people to drive her to get to various appointments and it was extremely difficult at the time.

11.The Tribunal referred Ms Hubbard during the presentation of her evidence to the legislative requirements which she was required to meet as Applicant in her case. In particular the Tribunal asked Ms Hubbard to address how the RTA treated her differently on the grounds of disability. She stated that she felt the RTA treated her differently by not accepting doctors’ reports which said she was fit to drive. She states that the RTA treated her differently, taking into account that as a driver she has had no accidents, and there was no reason for the RTA to keep her licence from her for so long.

12.Ms Hubbard states that the RTA required her to visit a treating psychiatrist. She states that the RTA treated her as if she had a mental illness and she had to prove that she did not. Because of this she was required to obtain a psychiatric assessment. She said she did not have a treating psychiatrist because she did not have a psychiatric illness or previous treatment. She told the Tribunal that it was difficult to arrange for the psychiatric assessment as she had to wait for a psychiatrist to be available.

13.Ms Hubbard was cross-examined by Ms Eastman, Counsel for the RTA.
Ms Eastman put to Ms Hubbard that, as a registered nurse, she would be aware of the publication, MIMS, which contains information about prescribed drugs. Ms Hubbard agreed. Ms Eastman showed Ms Hubbard a photocopy of the MIMS entry for Oxycontin. Ms Hubbard stated she was aware of the MIMS description at the time of time of taking the medication and agreed it was a class of opioid analgesic. Ms Hubbard agreed that she understood the schedule 8 poisons list, and was aware that to prescribe Oxycontin a doctor needed an authority. Ms Hubbard stated that the doctor needed to obtain authority each time it was prescribed. It was put to Ms Hubbard that she would be aware that schedule 8 drugs have a narcotic/addictive quality and she agreed. It was put to Ms Hubbard that Dr Dabash told her he'd raise the use of Oxycontin with the RTA. She was shown a letter, being DW 2 to the statement of Mr Wye, and she stated she had not seen that document before. On reading the document she agreed that it stated that she is taking narcotic medication which might affect her driving ability, being Oxycontin 80 mg twice daily. It was put to her that this was the maximum dose and she agreed 80 mg was the maximum dose but stated that the true maximum dose was for this to be prescribed three times a day rather than twice a day. It was put to her that she would be aware as a registered nurse and given her knowledge of the MIMS publication that the medication could cause one to experience side effects which could impact on driving. She agreed. She was asked whether she agreed that nothing she had provided to the RTA showed she was safe to drive when taking Oxycontin. Ms Hubbard replied that her doctor’s report said that, and the report of her pain specialist said that.

14.She was shown the document at DW 3, which was an RTA letter to her of 26 May 2005, which encloses a form for a doctor to complete. It was put to her that she did nothing in response to the letter. She disagreed stating she had forwarded the letter to Dr Crawford in Sydney. She stated that her response to the RTA was late. Ms Hubbard was shown a copy of the letter to her from the RTA dated 4 July 2005, and it was put to her that she had not responded to this letter. Ms Hubbard disagreed saying she had forwarded the letter to Dr Crawford and it had been sitting on his desk, she was advised when she telephoned him about it. She said she attempted to comply by sending the letter to her specialist. She stated that she thought the doctor would finish the report and this would settle it. It was put to her that she did not respond to the letter of 4 July 2005 until 24 August 2005. She agreed this was so. She stated that it was then that she had received Dr Crawford's letter and detailed her circumstances in her own letter, setting out that there was nothing hindering her ability to drive.

15.Ms Hubbard was referred to Dr Crawford’s report and in particular the answers to questions 9 and 10. She agreed in the answer to question nine, Dr Crawford had detailed a diagnosis of depression – controlled. She further agreed that Dr Crawford had answered "yes" to question 10, that she took prescribed drugs which are likely to affect driving. She noted that in the hand written comments Dr Crawford had stated, in relation to the prescribed drug, there was no alteration in cognitive function. In response to the answer to question nine, Ms Hubbard's stated that back in 1999 when her husband left her and she was first injured with her back, there was some depression. It was put to Ms Hubbard that Dr Crawford ticked, yes, to a drug affecting driving, and that answer might require clarification by the RTA. Ms Hubbard stated that there was no evidence of her driving being affected and that she functioned normally.

16.Ms Hubbard was referred to the adjudication sheet of 12 September 2005 (DW9) which contains the words "she is a drug seeker and shopper. She wanted more than 80 mg b.d.of Oxycontin". It was put to her that the words drug seeker and shopper do not indicate disability. Ms Hubbard responded that it led to what happened. It was put to her that there was no evidence that opioid addiction was suggested, and Ms Hubbard responded that it was an inference. Ms Hubbard was shown the letter from the RTA of 10 October 2005, and she responded that the letter implies she needed to prove that she was not drug dependent.

17. It was put to Ms Hubbard that after she received the letter of October 2005 she did nothing until January 2007. She disagreed stating that she saw her general practitioner, there was not a local drug and alcohol doctor, so she was referred to Dr Clubb and it took a while to get an appointment. She said she was doing all she could, she had to wait for appointments. It was put to her that the letter of October 2005 clearly indicated that she has the right to appeal the decision. Ms Hubbard stated at that time she was just trying to comply with the RTA requirements.

18. Ms Hubbard was referred to her licence renewal application, DW 11, of 30 January 2007. She agreed that her licence renewal application attached Dr Tari's report dated 30 January 2007. She was asked whether Dr Tari had a copy of the RTA's letter of 10 October 2005, and she agreed that he did. It was put to her that Dr Tari is a general practitioner and not a drug and alcohol specialist and she agreed. She stated she believed she needed a doctor's report to say she was fit to drive, as she did not have drug and alcohol problems. She further stated that Dr Tari, as a GP, does a lot of drug and alcohol work at his clinic and accordingly has some expertise. Ms Hubbard was referred a copy of the letter to her, from the RTA, of 14 February 2007. It was put that the letter refers to the requirement that she undergo a medical assessment by a drug and alcohol specialist in relation to prescribed opiate use, current dosage and other matters as set out in the letter. It was stated that the specialist must state the risk to self and public when you are driving a vehicle, and if there are any coexisting psychological or psychiatric disorders. Ms Hubbard stated she sees what the letter states, but the question is why the RTA went to these lengths and would not accept Dr Tari's opinion.

19.Ms Hubbard was referred to Dr Clubb's report of 5 November 2007. It was put to Ms Hubbard that Dr Clubb stated in his report that he advised Ms Hubbard that he was unable to give a specialist opinion on any psychiatric condition which may affect her driving. She responded that it was disappointing to have gone through all that, and to still not have obtained what was required. Ms Hubbard stated that the letter from the RTA asked for so much information it was hard to receive from any one specialist. She added that her general practitioner could provide all the information and had all the information, so that it was unreasonable to require Ms Hubbard to obtain all the information from other sources.

20.It was put to Ms Hubbard that the letter from the RTA of 6 December 2007 indicated that the RTA accepted Dr Clubb's opinion and the letter focuses only on the need for a psychiatric report. Ms Hubbard responded that the letter implied she had a treating psychiatrist, and therefore a mental state. She said it was another hoop she had to jump through. It was put to her that she could have questioned this by lodging an appeal in the Local Court. She said it was then that she did lodge an appeal, on or about 19 December 2007. She said because she did not have a treating psychiatrist she did not know how to comply. There was discussion of Dr Burek’s report and she stated she did see Dr Burek and he advised her that she needed a medico/legal psychiatrist so he could not provide a report. She was unaware of Dr Burek’s report on Dr Tari's file. She finally had an appointment with a medico/legal psychiatrist. It was put that a report by Dr Wijeratne was forwarded to the RTA and is dated 19 June 2008. It was put to Ms Hubbard that when she provided the information as requested by the RTA, the RTA had responded quickly and she agreed.

21.In response to questions from the Tribunal Ms Hubbard stated that she had seen Dr Crawford, pain specialist, from the end of 2001 until the time she moved to the town near Dubbo, February 2005. She stated she had been stable on Oxycontin for some period of time. She had seen Dr Dabash two times before he contacted the RTA; she said he did this after the second visit. She had attended Dr Dabash with a report from her treating specialist outlining her treatment. It was after that, that changes to the Oxycontin medication were made by Dr Tari, about six months after she commenced seeing him. She did receive a report from Dr Crawford and noticed a reference to depression but thought it was not relevant as it was in the past. She stated she had ceased antidepressant medication about two years prior. When asked whether she had been seen at any time by a psychiatrist Ms Hubbard stated she had during the period of rehabilitation of her back injury; at that time she was assessed by psychiatrists.

The Respondent's case

22. The Respondent's case is set out in detailed written submissions to the Tribunal. The Respondent's case also consists of evidence presented at the hearing as detailed below. The written submission states:

1 . The Respondent submits that the complaint should be dismissed.

Overview and introduction

2. The Applicant alleges that the Respondent unlawfully discriminated against her on the ground of disability in breach of s49M of the Anti-Discrimination Act 1977

(NSW) (the Act).

3. The Applicant alleges that the disability in respect of which the Respondent discriminated against her is:

(a) presumed disability to drive a motor vehicle;

(b) presumed drug dependence; and

(6) presumed psychiatric disorder.

(See paragraph III(i) of Applicant's Summary of Complaint. provided under the cover of a letter dated 4 September 2009).

4. The Respondent notes this is broader than the Applicant's complaint which alleged:

(a) chronic back pain; and

(b) implied mental health problem (see President’s Report page 9).

5. The Applicant alleges that the Respondent discriminated against her because of one or more of the above "presumed" disabilities, when it suspended, and refused to reinstate her driver's licence (see paragraph III(ii) of Applicant's Summary of Complaint, under the cover of a letter dated 4 September 2009).

6. The Respondent denies that it has unlawfully discriminated against the Applicant in breach of s49M of the Act, or at all, for the reasons set out below.

Issues to be determined

7. The period of the complaint is 20 May 2005 to 29 February 2008.

8, The following issues arise for determination:

(a) Did the Applicant have a disability for the purpose of ss 4 and 49A the Act?

(b) Did the Respondent provide a 'service' for the purpose of s 49M of the Act?

(c) From 20 May 2005 to 29 February 2008, did the Respondent treat the Applicant less favourably than another person in the same or similar circumstances as the Applicant, because of a presumed disability to drive a motor vehicle, a presumed drug dependence, or a presumed psychiatric disorder in breach of s49M of the Act? and

(d) if (c) is answered in the Applicant's favour, what is the appropriate relief?

Chronology of events

9. The Applicant's driver licence was suspended by the State Debt Recovery Office for failure to pay fines from 20 May 2005 to 7 December 2005.

10. During this period, the Respondent received unsolicited advice from a Dr Dabash that called into question the Applicant's fitness to drive because of narcotic medication she had been prescribed.

11. Upon receiving this advice, the Respondent requested in writing that the Applicant submit to a medical test and provide the Respondent with information regarding her fitness to drive.

12. The Applicant failed to respond to the Respondent's request.

13. In accordance with its powers under clause 38(l)(a) of the applicable Driver Licensing Regulation, the Respondent advised the Applicant that her driver licence would be suspended until she submitted to a medical test, and provided the information requested.

14. The Respondent's suspension of the Applicant's driver licence under clause 38 (1)(a) of the applicable Driver Licensing Regulation, first became active on 13 December2005, after the existing suspension of the Applicant's licence due to non-payment of fines was lifted.

15. The Applicant's driver licence was re-instated on 1 July 2008, after the Applicant had submitted to all medical tests and provided all information requested by the Respondent.

16. A detailed chronology is attached to these submissions. This chronology records that the delay in the lifting of the suspension was in most part, due to the Applicant's delay in responding to the Respondent's requests for obtaining the medical advice required.

Statutory framework relevant to the Respondent's functions

17. The Respondent is a statutory corporation, constituted under Division 1A of the Transport Administration Act 1988 (NSW) (TA Act).

1 8. The Respondent's functions are conferred on it by the TA Act, and other State laws, including the Road Transport (Driver Licensing) Act 1998 NSW (Driver Licensing Act) and its associated regulations.

19. The objects of the Driver Licensing Act include:

(a) to provide for the establishment of a driver licensing system in accordance with a uniform national approach that has been adopted to driver licensing; and

(b) to improve road safety, to facilitate the regulation of drivers of motor vehicles in the interests of road safety and provide a means of enforcing safety standards (see s3 Driver Licencing Act).

20. Section 52A of the TA Act confers on the Respondent overarching statutory functions relating to traffic management and safety.

21. The Driver Licensing Act confers on the Respondent various functions regarding the administration of the driver licensing system that applies in New South Wales (see s8 Driver Licensing Act).

22. To perform its functions. the Road Transport (Driver Licensing) Regulation 2008 (Driver Licensing Regulation) provides that the Respondent may vary, suspend or cancel a person's driver licence if it appears to the Respondent that the person has failed or refused to submit to a test or medical examination required under or in accordance with the Driver Licensing Act or Driver Licensing Regulation (see clause 55(1 )(a) Driver Licensing Regulation, and clause 38(1) (a) of its predecessor the Road Transport (Driver Licensing) Regulation 1999, which is relevantly in the same terms.)

23. The Driver Licensing Regulation also provides that the Respondent may vary, suspend or cancel a person's driver licence if it appears to the Respondent that the person is not a fit and proper person to hold a driver licence (see clause 55(1)(d) Driver Licensing Regulation, and clause 38(1 )(d) of its predecessor the Road Transport (Driver Licensing Regulation 1999, which is relevantly in the same

terms.)

24. If a person whose licence is suspended by the Respondent does not agree with the Respondent's decision, that person has a right to appeal against the Respondent's decision under sl8(1)(e) of the Road Transport (General) Regulation 2005. The Respondent is obliged under s17 of the: Road Transport (General) Regulation 2005 to advise the person of their appeal rights.

25. Section 49M of the Act relevantly provides......

.........

28. The Applicant bears the onus of proving:

(a) that she suffered from a disability within the meaning of ss4 and 49M of the Act;

(b) the relevant 'refusal" to provide services for the purpose of s49M(l)(a) of the Act; and/or

(c) the relevant terms on which the Respondent provided the services;

(d) that she was treated less favourably than a person without the disability in the same circumstances; and

(e) that a reason for the less favourable treatment was her disability.

Did the Applicant have a disability?

29. The Respondent does not concede that the Applicant had a disability within the meaning of ss 4,49A and 49M of the Act during the period of the complaint.

30. Further, the Respondent does not concede that it 'imputed' a disability to the Applicant within the meaning of s 49A(b) of the Act. The Respondent denies that it presumed the Applicant had a disability or implied that the Applicant had a disability: see Zhang v University of Tasmania [2OO91 FCXAFC35; Varas v Fairfield Council [20083] FMCA 996 and on appeal [2009] FCA 689.

31. At all relevant times, the Respondent submits that it was not concerned with whether the Applicant had a disability or not, but rather, whether the Applicant submitted to a medical test and provided sufficient information to it regarding her fitness to drive.

Did the Respondent provide a service?

33. The Respondent denies that it provided any relevant 'service' for the purpose of sections 4(1) and 49M of the Act. [The Respondent made detailed submissions as to whether the Respondent provided a service]........

Has the Applicant proved the elements of 'direct' discrimination?

43. Assuming that there is a service and there is evidence which engages s 49M(a) or (b) of the Act, the next step is to consider whether there has been discrimination as defined in s 49B(l)(a) of the Act. Section 49B(1)(a) relevantly provides......

44. The Applicant has not adduced evidence of 'less favourable' treatment.

45. Further, the Applicant must also identify a relevant comparator: see Purvis v New South Wales[2003] HCA 62; [2003] HCA 62; 217 CLR 92 (Purvis). The Applicant has failed to adduce evidence that a person without her disabilities or presumed disabilities, was or would have been treated differently by the Respondent in the same circumstances.

46 . The Respondent submits that it treated the Applicant in the same way as it treated treats all other persons in New South Wales where their fitness to drive is called into question for any reason, regardless of whether they have any disability or not. All drivers must demonstrate a capacity to drive safely.

Causation

47. Even if the Applicant could show there was less favourable treatment she must then prove that a reason for the treatment was the claimed disability or disabilities............

........ The Applicant must do more than simply prove that she had a disability and something happened. She must prove that a reason for the treatment was a disability.

50. The proper question is to ask why the Applicant was treated in a particular way.

5 1. The Applicant has failed to adduce any evidence which shows or allows an inference to be drawn that the Respondent suspended the Applicant's driver licence because of any disability.

52. The evidence shows that the Respondent was required to comply with its statutory functions. Based on the available material, it was proper for the Respondent to suspend the Applicant's driver licence. The issue was the Applicant's capacity to drive, not the fact that she may or may not have a disability. The evidence makes it clear that there are drivers with a range of disabilities. Some drivers have the same types of disabilities as the Applicant alleges were imputed to her. The Respondent notes that there are people with these disabilities who hold drivers licences. For these divers the issue is capacity to drive safely, rather than the disability per se.

53. In the present matter, as soon as the Applicant provided relevant information demonstrating that she had the capacity to drive safely, the suspension was lifted.

54. The Respondent submits that there is no evidence to support a finding of direct discrimination.

Damages

55.[Detailed submissions were made in relation to the issue of damages].

23.Counsel for the Respondent, Ms Eastman, made an opening statement which was consistent with the issues raised in the written submissions. She submitted that is the RTA's responsibility to ensure drivers can drive safely. She noted the evidence of the Respondent consisted of evidence from two witnesses, being Mr Wye and Mr Vassen. Mr Vassen is the manager of the licence review unit and Mr Wye was involved in Ms Hubbard's case.

24.Mr Vassen gave oral evidence to the Tribunal and adopted his written statement which was admitted into evidence without objection. The statement is retained on the Tribunal file and may be referred to. All of the detail in the statement will not be repeated in these written reasons for decision but was carefully considered by the Tribunal. Mr Vassen referred to the regulatory framework in which the RTA operates to ensure the regulation of drivers’ licences with respect to ensuring safe driving. Within the RTA there are adjudication officers and senior staff. The RTA does not expect adjudication officers to be medically trained or make any decisions personally about medical fitness to drive. Instead it is expected that adjudication officers will rely on medical advice provided to them. There are standards called The Medical Standards For Licensing And Clinical Management Guidelines Assessing Fitness To Drive (The Guidelines). Mr Vassen states that he is satisfied, after reviewing the current file, that's the approach taken by the relevant adjudication officers, was consistent with the RTA’s general approach to matters of this kind. From his review of the file Mr Vassen believes the adjudication officer's decision to suspend or renew Ms Hubbard's licence was subject to Ms Hubbard providing the information that the RTA's medical adviser required, so that the RTA could be satisfied that Ms Hubbard posed no risk to road safety. He states that the suspension first became active on 13 December 2005 after an existing suspension of Ms Hubbard's licence, due to non-payment of fines, was lifted.

25.Mr Wye gave oral evidence to the Tribunal and his written statement was admitted into evidence without objection. The statement is retained on the Tribunal file and may be referred to. All the detail will not be repeated in these written reasons for decision. A number of documents were annexed to the statement including copies of medical reports and correspondence by the RTA to Ms Julie Hubbard. At paragraph 20 of the statement Mr Wye states that when he receives information from a medical practitioner which does not contain the medical practitioner’s opinion as to whether a driver is fit to drive, he either refers the information received to the RTA's medical advisers for their opinion, or seeks further information from the driver concerned. From 2005 to 2009 the RTA's medical advisers were HealthQuest, a New South Wales government body. Template documents are used to correspond with drivers to ensure consistency. In relation to Ms Julie Hubbard, the report of Dr Dabash ("Unsafe Driving Report") did not indicate his opinion of whether she was fit or unfit to drive, it did raise issues about her fitness to drive. Accordingly, in order to confirm fitness to drive, a letter was sent to Ms Hubbard on 26 May 2005 requesting she arrange to be examined by the treating doctor and complete the medical form enclosed with the letter.

26.Mr Wye gave detailed evidence in his written statement and oral evidence as to the dates of letters sent by the RTA to Ms Hubbard advising of RTA decisions/requirements in relation to Ms Hubbard’s licence. He gave evidence of the medical advice received from HealthQuest, and the medical reports and correspondence received from Ms Hubbard. Mr Wye’s evidence is referred to in detail in paragraphs 47 - 49 below.

27.Mr Wye was cross examined by the Applicant. The Applicant asked a number of questions of Mr Wye in relation to contacts between the RTA and Dr Dabash. Mr Wye indicated that he did not have personal contact with Dr Dabash although it appears from the documentation that a HealthQuest officer did so. He was asked how he differentiated between the report of Dr Tari, treating doctor, and the report of Dr Dabash. Mr Wye stated that where there two different reports he seeks medical advice and advice was sought from HealthQuest in relation to the different reports received.

28. In response to Ms Hubbard’s questions Mr Wye stated that the suspension of the licence is the first step and the focus then moves on to lifting the suspension. He was asked whether Dr Crawford's report was not satisfactory and he stated that it was given to the medical advisers, HealthQuest, to advise the RTA if Ms Hubbard is fit to drive a motor vehicle. HealthQuest will provide the RTA with a medical opinion and the RTA will then make a decision. Sometimes Mr Wye will go back and ask a further question of HealthQuest, or seek clarification, and his hand written notes indicate he did so in this case. Ms Hubbard asked Mr Wye whether he would go against what HealthQuest advised and Mr Wye responded that they provide a medical opinion and he will not go against a medical opinion. He was questioned about whether he had considered her hand written correspondence of August 2005, and whether he had sent it to HealthQuest , and Mr Wye responded that he would have considered this, and noted that a stamp on the document indicated that it had been referred to HealthQuest.

29.In response to questions by the Tribunal in relation to the report of Dr Dabash and the use of the words "drug seeker and shopper", Mr Wye agreed those words would trigger a referral and the seeking of a medical opinion as to what further information may be required. Usually the required information would be a report of a drug and alcohol specialist.

Submissions of the Applicant

30.The Applicant made oral submissions and also relied on her written submissions previously submitted. She states that she provided evidence that while her licence was suspended she was in fact fit to drive. She states the RTA relies on comments by Dr Dabash, who had not known her that long, in assessing the fact that she was prescribed medications. She stated these were medications which she had been prescribed for many years, with no side effects. Ms Hubbard states the RTA implied a disability of psychiatric disorder and states that at no time was she treated by a psychiatrist or had a mental health condition. She says the use of the words "treating psychiatrist" by the RTA in their correspondence implies she was being treated and she was not.

31.She states it is not her fault that the process went on for so long, nor is it her fault that it took so long to get reports and comply with the RTA's requirements. It was complicated by the fine suspension of licence which she was going to take to the local court and then decided not to. She stated that the RTA did not give due consideration to the letter which she wrote. They did not give due consideration to the report of her treating doctor, Dr Tari. She said that when Dr Crawford ticked "yes "in answer to question nine of the form, he did so because the prescribed drug is known to have the effect. However she said that there was no evidence of this impact upon her. She states that the RTA referred all her documents to HealthQuest who she believes acted unfairly by assuming she had health conditions which would affect her driving, rather than considering the issue from her point of view. This, she submitted, raises doubts about their actions in terms of fairness. They could have acted differently if they considered the evidence from her point of view. She said that the use of the word drug shopper by Dr Dabash and HealthQuest caused her to be labelled, and this was why the RTA pursued the case against her. They did not give sufficient weight to the report of Dr Crawford who had treated her for several years and they did not take notice of letter that she wrote . She feels she has been treated unfairly. The RTA changed their requirements from a report from a treating doctor, to a drug and alcohol specialist, to a psychiatrist. She said that she has given evidence in support of the case that she was discriminated against because of disability, or presumed disability.

Respondent's submissions

32.Counsel for the Respondent made oral submissions consistent with the written submissions which are set out in these written reasons for decision. She indicated that the RTA was not relying on a statutory defence, as the RTA's actions were not mandatory under the legislation, however the RTA's actions in complying with the regulatory framework are relevant in assessing the evidence. Counsel for Respondent referred to the issue of implied drug dependence and Marsden’s case. (Marsden v Human Rights and Equal Opportunity Commission [2000] FCA 1619). She submitted there was no evidence of a presumption of disability. She further submitted there was no evidence that there was a presumed psychiatric disability and noted that Dr Clubb stated that the depression was controlled. On the medical evidence the RTA needed to know whether any psychiatric condition affected her ability to drive. There was no imputation of a psychiatric disability rather there was evidence of a past psychiatric condition which needed to be assessed. In relation to chronic back pain disability there was no discrimination on this basis. In the Respondent's submission that there is no evidence that the RTA made decisions based on any actual disability or presumed disability.

33.In relation to services the Respondent made oral submissions consistent with the written submissions.

34.The Respondent submitted that there was no evidence that the Applicant has been treated less favourably than another person who did not provide information to the RTA when requested. There was no evidence of less favourable treatment.

35. Submissions were also made in relation to damages claimed by the Applicant. Those submissions referred to the evidence and the issue of mitigation of damages.

The Applicant’s submissions in response

36.The Applicant submitted in response that she was at all times attempting to comply with the RTA's requirements. She stated it was when she realised this was not working that she pursued a local court appeal. She reiterated that the actions of the RTA showed differential treatment of herself, on the basis of their view that she suffered a psychiatric disability of depression. She stated that depression is a symptom, not a condition. She submitted that depression, in the past, should not have been taken into consideration by the RTA.

37.In relation to services, she says her case is about the manner in which the RTA provided her with services. The RTA's requirements, as to what was sufficient information, kept changing, and they did not properly consider her letter of August 2005.

THE TRIBUNAL’S FINDINGS AND REASONING

The Legislative requirements

49A Disability includes past, future and presumed disability

A reference in this Part to a person’s disability is a reference to a disability:

(a) That a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

49B What constitutes discrimination on the ground of disability

(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability,

Provision of goods and services

49M Provision of goods and services

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

Acts done under statutory authority

54 Acts done under statutory authority

(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:

(a) any other Act, whether passed before or after this Act,

(b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act,

(c) an order of the Tribunal,

(d) an order of any court, not including an order or award of a court or Tribunal having power to fix minimum wages and other terms and conditions of employment, or

(3) Except as provided in this section, this Act has effect notwithstanding anything contained in:

(a) the Co-operation Act 1923 ,

(b) the Financial Institutions (New South Wales) Act 1992 ,

(c) the Friendly Societies (NSW) Code or the Friendly Societies (NSW) Regulations ,

(c1) the Co-operatives Act 1992 ,

(f) the Registered Clubs Act 1976 ,

or any instrument of whatever nature made or approved thereunder.

The Issue of disability

38.Disability is defined in section 4 of the Anti-Discrimination Act 1977.

"disability" means:

(a) total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or

(b) the presence in a person’s body of organisms causing or capable of causing disease or illness, or

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

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

Relevantly to the present application, the question of whether opioid addiction/dependence is a disability has been the subject of discussion in recent cases.

39.In Marsden (Marsden v Human Rights and Equal Opportunity Commission [2000] FCA 1619) it was stated:

54 In my view, the Inquiry Commissioner rightly concluded that it was open to him to find that, prima facie, the Applicant's condition of addiction was comprehended by subparagraph (g) of the statutory definition of "disability". However, the Inquiry Commissioner went on to indicate tentative support for the view that a person who suffers a disorder, illness or disease of the kind described in subparagraph (g) does not suffer a disability within the meaning of the DDA if the appropriate treatment regime gives relief against the consequences of the disorder etc even though the treatment itself creates a condition of dependence which may be permanent.

55 In ordinary usage, the words "disorder, illness or disease" encompass a medical condition the symptoms of which can be, and are, alleviated by treatment. Certain disorders are amenable to treatment such that, while taking appropriate treatment, the person suffering from the disorder feels normal and is able to lead a normal life. There are psychiatric conditions, for example, which fit into this category. Nonetheless, in ordinary parlance, the person still suffers the disorder. There is nothing in the DDA which suggests that the words "disorder, illness or disease" in subparagraph (g) of the definition of disability are not intended to bear their usual meaning.

56 It is also of significance that, in reaching the tentative conclusion that the Applicant does not suffer a disability within the meaning of the DDA, the Inquiry Commissioner apparently attributed no significance to subparagraphs (h)-(k) of the definition of disability. It was sufficient, for the purposes of the Applicant's complaint, that the Club had discriminated against him on the ground that he had previously been addicted to heroin, might in the future be addicted to heroin or another opiate, or because it imputed a disability to him. The tentative view of the Inquiry Commissioner that the Applicant's opioid dependency could not constitute a disability within the meaning of the DDA cannot, in the circumstances, be upheld.

40.The issue of opioid dependence and disability was also considered by the Tribunal in the case of Carr v Botany Bay Council [2003] NSWADT 209 (Carr’s case). In that case the Tribunal stated:

45 We are satisfied that the Applicant's disability is methadone addiction, and that it would be incorrect to describe it as heroin addiction. In reaching this view we have attached particular importance to the following:

· The Applicant has been on a registered methadone program for many years and his treatment is considered to be stable.

· The Applicant's compliance with the program is tested by weekly urine specimens. If he were to test positive for heroin or other drugs, his takeaway doses would be withdrawn.

46 We turn now to discuss the Respondents' submission that because the Applicant did not manifest any altered thought processes, perceptions of reality, emotions or judgment, or disturbed behaviour at the time of the alleged discrimination, he cannot be said to have a "disability" within the meaning of the Act. They maintain that this submission is consistent with the approach adopted by the Federal Court when interpreting the equivalent disability provision of the Disability Discrimination Act 1994 (Cth) (hereafter DDA) - viz para (g) of the definition of disability in s4(1). The Applicant refutes this contention and submits that the Federal Court has made it clear that the DDA equivalent of the definition of disability in the NSW Act provides protection to persons who are discriminated against because they have a relevant disorder, regardless of whether the symptoms of that disorder are manifested at the time of the discrimination.

47 In Marsden v Human Rights and Equal Opportunity Commission [2000] FCA 1619, Branson J declined to uphold the tentative view of the Inquiry Commissioner at first instance that the Applicant's opioid dependence did not constitute a disability within the meaning of the DDA. In that case the Applicant had been a regular user of prescribed methadone for approximately seven years. He was formerly addicted to heroin. After stating that the alleged disability was the Applicant's dependence on methadone, the Inquiry Commissioner observed that although methadone was taken to "relieve against the symptoms of heroin withdrawal", methadone itself was addictive and had accordingly rendered the Applicant opioid dependent.

48 As noted by Branson J in Marsden v Human Rights and Equal Opportunity Commission at [54], the Inquiry Commissioner went on to indicate tentative support for the view that a person who suffers a disorder, illness or disease of the kind described in para (g) does not suffer a disability within the meaning of the DDA if the appropriate treatment regime gives relief against the consequences of the disorder, illness or disease even though the treatment itself creates a condition of dependence which may be permanent.

49 The Inquiry Commissioner's construction of the legislative definition of "disability" was expressly rejected by Branson J at [55]:

"In ordinary usage, the words "disorder, illness or disease" encompass a medical condition the symptoms of which can be, and are, alleviated by treatment. Certain disorders are amenable to treatment such that, while taking appropriate treatment, the person suffering from the disorder feels normal and is able to lead a normal life. There are psychiatric conditions, for example, which fit into this category. Nonetheless, in ordinary parlance, the person still suffers a disorder. There is nothing in the DDA which suggests that the words "disorder, illness or disease" in sub-paragraph (g) of the definition of "disability" are not intended to bear their usual meaning."

50 The Applicant submits that the Respondents' present contention is, in effect, that advanced by the Inquiry Commissioner in Marsden. He submits that we should adopt Branson J's interpretation. We understand the Respondents to be submitting that the present case can safely be distinguished from Her Honour's decision in Marsden on the basis that the Applicant's methadone dependence in that case was only held to be a "disability" within the meaning of the DDA because the Applicant had actually manifested the symptoms of his alleged disorder at the time of the alleged discrimination. We do not accept this submission. There is nothing in Her Honour's reasoning to suggest that she took such a restricted view of the legislative definition of "disability" or that her comments in para [55] were confined to the particular facts of the case. On the contrary, Her Honour specifically states that there is nothing in the DDA to suggest that the words "disorder, illness or disease" in the definition of "disability" are not intended to bear their usual meaning. Thus, the fact that a person who suffers from a disorder feels 'normal' and is able to lead 'a normal life' while taking appropriate treatment does not mean that he or she no longer has a disability within the meaning of the DDA.

51 The Applicant submits that the approach taken by Her Honour in Marsden is consistent with other Federal Court decisions eg Tate v Rafin [2000] FCA 1582; Purvis v State of New South Wales (Department of Education and Training) [2002] FCAFC 503 (currently under appeal to the High Court). The Respondents submit that these authorities are consistent with their primary submission (set out at [32] earlier in this decision).

52 In Purvis v State of New South Wales (Department of Education and Training) the appellant, a student, had an intellectual disability which manifested itself in repetitive anti-social and violent conduct. The Full Court upheld the decision of Emmett J as to the application of para (g) of the definition of "disability" in s4(1) of the DDA in respect of a disorder which affects thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. The Full Court observed at [37]:

"It is only a . . . disorder . . . that is manifested in certain symptoms that will constitute a disability. Thus, it is the disorder . . . that is the disability. It is not the symptom of that condition that is the disability."

53 In accordance with the above view, the Full Court held at [28], that the appellant's behaviour:

". . . was a consequence of the disability rather than any part of the disability within the meaning of s4 of the Act. This is made quite explicit in subs (g), which most appropriately describes the disability in question here and which distinguishes between the disability and the conduct which it causes."

Similar reasoning was adopted by Wilcox J in Tate v Rafin at [66] - [68].

54 Unless it is caught by the exception in s49PA, we are of the view that the Applicant's methadone addiction is a disability for the purposes of the Act. Since methadone is an opioid, the Applicant's disability can also be defined as opioid dependence, which manifests itself through his methadone addiction (as distinct from his former heroin dependence). It is, however, simpler to define his disability as methadone addiction.

41.The reasoning in these cases would suggest that opioid dependence/addiction is a disability within the Anti-Discrimination Act. (Carr’s case refers to the reasoning of the Federal Court in Purvis’s case which was then on appeal to the High Court. The majority decision of the High Court ((2003) [2003] HCA 62; 217 CLR 92) did not alter the applicability of the reasoning of the Federal Court referred to by the Tribunal in Carr’s case). In Ms Hubbard’s case she has been prescribed Oxycontin to treat chronic pain; and Oxycontin, an opioid, has addictive qualities. The MIMS publication submitted into evidence makes this clear. In Carr’s case the applicant was prescribed methadone to treat heroin withdrawal and the Tribunal in that case noted the findings in Marsden’s case that whilst methadone was prescribed to treat heroin withdrawal, methadone itself was addictive and had caused the applicant in that case to be opioid dependent. In Carr’s case the Tribunal defined the disability as opioid dependence, and methadone dependence. Ms Hubbard states in her application that the RTA presumed that she was drug dependent. In the present case there is no evidence that Ms Hubbard had such a disability, of opioid dependence – indeed she disputes this. However, she claims that the Respondent presumed the disability of drug dependence (and the relevant drug was an opiate so the Tribunal considers this translates to opioid dependence) and this was a basis for differential treatment of her in relation to her licence.

42.The Tribunal finds, on the evidence, that Ms Hubbard was not presumed by the RTA to have this disability at the time of the decision to suspend her licence – her licence was suspended due to her failure to respond to the request of the RTA to provide information. The decision to suspend her licence for failure to provide information predates the adjudication by HealthQuest which refers to Dr Dabash’s view that she is a drug shopper. The information which the RTA was acting on at the time of suspending her licence in July 2005 was the notification of the prescription of a drug which may affect driving.

43.However, does the issue of presumed disability arise in the RTA’s actions of requiring a report by a drug and alchohol specialist, given HealthQuest’s consideration of Dr Dabash’s description of her as a "drug seeker and shopper"? Does drug shopper equate with opiod dependence? Can the Tribunal draw an inference from the use of these words that being opioid dependent/addicted was imputed to Ms Hubbard? Does the evidence support a conclusion that the RTA presumed that Ms Hubbard had a disability of opiod dependence and that this was a reason for their actions in relation to Ms Hubbard’s licence?

44.The other issue to be determined in relation to disability in the present case, is the issue of psychiatric disability, or presumed psychiatric disability. The evidence supports a conclusion that Ms Hubbard had a diagnosis of depression in the past which Dr Crawford stated was controlled. Ms Hubbard contends that depression is not a psychiatric condition but a symptom. The Tribunal prefers the view of Dr Crawford which is a medical opinion that Ms Hubbard has suffered from depression. Indeed, Ms Hubbard gave evidence of being prescribed anti-depressant medication previously. Ms Hubbard states that because she does not have the condition currently, then the RTA has imputed this disability of psychiatric disorder to her. The Tribunal is satisfied that the psychiatric illness/disorder is a disability (paragraph (e) of definition).

45.In relation to the two issues of presumed opioid dependence and presumed or past psychiatric illness/disorder, Ms Hubbard is has the onus of establishing on the evidence that a reason that the RTA acted as it did was Ms Hubbard's disability or presumed disability. The Respondent states that the RTA's actions were taken for the reason of ensuring that Ms Hubbard was medically fit to drive safely. In considering the evidence presented, the Tribunal is required to consider why the RTA took the disputed actions.
A central factual issue – why did the RTA take the actions in relation to Ms Hubbard’s licence?

46.Ms Hubbard's states that the reason the RTA suspended her licence and refused to renew the licence was because of disability, or presumed disability. The RTA states that the reason that the licence was suspended was because Ms Hubbard did not respond to the RTA's request for information within a specified period. On the same basis the licence could not be renewed because the information as to fitness to drive had not been provided, as requested. On the evidence the Tribunal makes findings about this central issue, as follows.

47.The evidence of Mr Wye indicates that the RTA received information from a doctor in the community, being doctor Dabash, which raised issues about Ms Hubbard’s fitness to drive. The information was an "Unsafe Driving Report" from Dr Dabash which stated that Ms Hubbard was taking Oxycontin medication which may affect her driving ability. The RTA then wrote to Ms Hubbard requesting information as to whether she was fit to drive (letter of 26 May 2005). Ms Hubbard did not respond to this request for information in a specified time period and so the RTA suspended her licence due to the failure to respond to the request for information (as advised by letter of 4 July 2005 from the RTA to Ms Hubbard). In August 2005 Ms Hubbard wrote a detailed letter to the RTA and enclosed Dr Crawford's report. Dr Crawford, in a section on the report "Comment on any conditions likely to affect driving" stated "chronic back and neck pain of a neuropathic nature with depression. Pain controlled with oral narcotic medication and anti- neuropathic medication with no alteration in cognitive function".

48.The evidence of Mr Wye indicates that the RTA referred the medical reports, of Dr Crawford and Dr Dabash, to the RTA's medical advisers, HealthQuest. Mr Wye specifically asked HealthQuest whether Ms Hubbard was fit to drive referring to both doctor's comments (DW6). Mr Wye made a further request, by handwritten note, (DW8) to HealthQuest asking what further information the driver needed to present and specifically asking if Dr Crawford's report was sufficient (paragraph 39 of Mr Wye’s statement). The Tribunal accepts the evidence of Mr Wye that where there was an inconsistency, or conflict, in medical reports he did not form a medical opinion himself but referred the reports for medical opinion by HealthQuest. After receiving the opinion of HealthQuest that a report from a drug and alcohol specialist was required, the RTA so advised Ms Hubbard. The RTA's letter of 10 October 2005 advised Ms Hubbard of the medical suspension of her licence and that it would be lifted if she supplied a satisfactory medical report from a drug and alcohol physician. The letter details what the report should address and it also states that the letter of the RTA must be presented to the drug and alcohol physician. Ms Hubbard did not respond to the correspondence. Subsequently, on 30 January 2007, she submitted an application for renewal of driver’s licence and attached a report by Dr Tari. That report did not state that Dr Tari had at any expertise in drug and alcohol matters. Ms Hubbard had been previously notified that she was required by the RTA to provide an assessment from a drug and alcohol physician. In her evidence to the Tribunal Ms Hubbard states that Dr Tari had some expertise in this area as a general practitioner given his particular patients and practice. However she did not present any evidence to the RTA that Dr Tari's opinion should be accepted rather, she did not provide the information specifically requested by the RTA. An adjudication sheet of 9 February 2007 (attachment DW13 to Mr Wye’s statement) indicates that the RTA received a medical opinion from HealthQuest advising that a report was required from a drug and alcohol specialist, and what the specialist should address in the report, including whether there were any co-existing psychological or psychiatric disorders "If so, a full Psychiatrist’s report will be required". The RTA then wrote to Ms Hubbard by letter dated 14 February 2007 advising of the requirement for assessment by a specialist in a drug and alcohol unit, setting out what the specialist should address in the assessment, including whether there are any co-existing psychological or psychiatric disorders.

49.Subsequently, Ms Hubbard did attend on a drug and alcohol specialist, Dr Clubb, and the Tribunal accepts Ms Hubbard’s evidence that it took some time to arrange these appointments and to attend the appointments in Sydney. The evidence indicates that Dr Clubb told Ms Hubbard that he was unable to provide a psychiatric opinion and she was on notice that this requirement of the RTA could not be met by Dr Clubb's report. Dr Clubb states " I am unable to certify she is able to resume driving. It may be appropriate that she be seen by experts in psychiatry.... as long as she remains on a steady dose of opioid, it may be possible that she resumes driving." Dr Clubb's letter was received by the RTA on 9 November 2007, according to Mr Wye, and the report is dated 5 November 2007. The RTA, in a letter of 6 December 2007, requests a psychiatric report addressing specific issues. The RTA does not make any further request for assessment of drug and alcohol issues. The RTA letter refers to a report by a treating psychiatrist. Ms Hubbard states that she did not have a treating psychiatrist, because she did not have a psychiatric illness, and so is was difficult for her to comply. It appears that an appointment was in fact arranged with Dr Burek who she states says he could not provide a report. Subsequently Ms Hubbard forwarded a report dated 19 June 2008 from Dr Wijeratne, visiting psychiatrist. Dr Wijeratne states in his report " Ms Hubbard does not present any current psychiatric illnesses such as major depression or substance abuse. She does not require any further psychiatric treatment at this stage. In my opinion there is no psychiatric reason why Ms Hubbard should not be able to drive." The RTA then wrote the letter of 1 July 2008 indicating that Ms Hubbard could renew her licence. The letter states that in view of the information received from the treating psychiatrist the licence suspension has now been lifted.

50.The Tribunal's findings in relation to the RTA's actions are as follows. In relation to the suspension of the drivers licence, as advised by letter of 4 July 2005, the Tribunal finds that the RTA took this action because Ms Hubbard had failed to respond to the RTA's request for information in its letter of 26 May 2005. The Tribunal further finds that the RTA made the request for information because of receipt of the unsafe driving report from Dr Dabash ,which notified of the prescription of Oxycontin. The Tribunal finds that at the time of this decision the RTA had formed no view about Ms Hubbard's fitness to drive, rather, the RTA had formed a view that further information was required in relation to her fitness/safety to drive.

51.The Tribunal finds in relation to the decision to maintain the suspension, which the RTA informed Ms Hubbard of by letter dated 10 October 2005, that the RTA followed medical advice - that to be satisfied that Ms Hubbard was a safe/fit driver, a drug and alcohol assessment was required. Upon receipt of the licence renewal application and Dr Tari’s report, medical advice provided to the RTA by HealthQuest advised, in the context of determining fitness to drive, of the need for an assessment by a drug and alcohol specialist which should also address whether there were any co-existing psychological or psychiatric issues. The Tribunal finds that when Ms Hubbard applied to renew her licence in January 2007 the issue of the drug and alcohol assessment, previously requested by the RTA in the correspondence of 10 October 2005, was outstanding .The report by Dr Tari submitted with the licence renewal application, did not, in the Tribunal's view, address the issue as the RTA's correspondence had clearly required a report by a drug and alcohol physician. Moreover it is clear that Dr Tari’s report was considered by the RTA and their medical advisors, and the RTA was not satisfied of Ms Hubbard’s medical fitness to drive at that time. This is set out in the correspondence of the RTA of 14 February 2007, which specifically refers to the report of Ms Hubbard’s doctor (Dr Tari). The evidence indicates that that letter was written after receiving the medical opinion of HealthQuest: the adjudication sheet by HealthQuest (DW 13) indicates the medical opinion and advice of HealthQuest that, in considering fitness to drive, Ms Hubbard be required to obtain a report addressing various matters (the requirement for a report by a drug and alcohol specialist which also states whether there are psychiatric issues). The HealthQuest opinion set out in DW13 clearly indicates that the report is sought in the context of assessing safety to drive and any impact on safety of the medication/medical fitness issues. HealthQuest sets out what the report should address and uses such words as "side effects on alertness and impact on driving performance..... please state the level of risk to self or the public when driving a vehicle". The report which was subsequently provided by Ms Hubbard, by Dr Clubb, Drug and Alcohol specialist, provided considerable detail on drug and alcohol issues. However Dr Clubb clearly states that he cannot provide a psychiatric opinion and said he cannot certify that Ms Hubbard is safe to drive. The information requested by the RTA, in order to be satisfied as to fitness to drive, which was requested on the advice of their medical advisers, was therefore still outstanding. As such the medical suspension, confirmed in the correspondence of 10 October 2005, and confirmed in the correspondence of 14 February 2007, remained in place. The correspondence of 14 February 2007 details the medical information which the RTA required, based on the HealthQuest advice (DW 13), in order to consider lifting the suspension.

52.The Tribunal finds, for reasons detailed above, that from the first letter of 26 May 2005 the RTA was seeking information in order to assess Ms Hubbard's fitness/safety to drive. The Tribunal finds that the seeking of this information by the RTA was in performance of their statutory duties in relation to the issuing of licences and road safety. The Tribunal finds that the reason that the RTA sought this information from Ms Hubbard was that information had been received (the Unsafe Driving Report) indicating an issue as to safety to drive, and the RTA sought information from Ms Hubbard so as to be satisfied of her fitness/safety to drive. The RTA did not seek information or suspend Ms Hubbard's licence, as discussed above, for reason of any disability held by Ms Hubbard or presumed to be held by Ms Hubbard. Rather, the reason for the RTA seeking information was to meet the RTA’s requirements to be satisfied that Ms Hubbard was fit/safe to drive. The reason the RTA suspended Ms Hubbard’s licence was that they had not received the information requested within a specified period. The reason the RTA maintained the suspension (ie did not lift suspension) and did not approve the licence renewal application, was that the RTA’s requirements to be satisfied that Ms Hubbard was fit/safe to drive, had not been met, as Ms Hubbard had not supplied information considered by the RTA, on advice from their medical advisors, to be required to demonstrate fitness/safety to drive.

53.Given these findings the Tribunal is not satisfied that Ms Hubbard has established on the evidence that a reason that the RTA took the disputed actions was because of Ms Hubbard’s disability or presumed disability.

54.Ms Hubbard's case is that she feels she was treated unfairly, she was made to jump through too many hoops, she feels her initial report from her treating doctor, Dr Crawford, or a subsequent report from Dr Tari, her general practitioner, should have been given more weight by the RTA than a report by Dr Dabash who did not know her. Her case is that the RTA failed to properly consider and give weight to the evidence before it, and placed too much weight on the evidence of Dr Dabash, and in following the HealthQuest directions, which required Ms Hubbard to obtain further assessments from a drug and alcohol specialist and a psychiatrist. The Tribunal considers that Ms Hubbard's arguments on these points present a case which seeks review of the RTA's decision-making process, and whether the best or most appropriate decision was made by RTA on the evidence before it. This Tribunal does not conduct, on the present application under the Anti-Discrimination Act, a review of the administrative decision making. The Tribunal is required on the current application under the Anti Discrimination Act, to decide whether the RTA discriminated against Ms Hubbard in the provision of services on the grounds of disability, and in particular, whether the RTA took the action in relation to Ms Hubbard's licence on the grounds of her disability, or presumed disability. For the reasons discussed above, the Tribunal is not so satisfied.

55.As the Tribunal is not satisfied that a reason that the RTA took the disputed action was because of disability or presumed disability then the Tribunal did not need to go on to consider other issues and legal arguments raised by Respondent. In the Tribunal's view Ms Hubbard has not established, on the balance of probabilities, that she suffered discrimination for reason of disability. That being so then the Tribunal did not need to go on to determine the issue of damages and compensation.

Less favourable treatment

56.The Applicant bears the onus, in case a direct discrimination, of proving that she was treated less favourably because of her disability or presumed disability, than would be a person in the same situation who did not possess the disability or presumed disability. The Applicant did not address this issue in detail in her evidence but did state that that in requiring her to obtain the various medical reports/assessments the RTA treated her less favourably than a person would be who did not have the disability, or presumed disability. The Tribunal should objectively consider the evidence overall and decide whether there has been such differential treatment.

57.Given the Tribunal's conclusions on other aspects of the case, the Tribunal did not need to determine whether Ms Hubbard had proved this part of her case.

Services
58.Australian courts have consistently given a broad meaning to the term services, and have also indicated that the Applicant must clearly identify the service in question. In the present case she has not done so with precision, however, it is clear from the evidence presented that she is referring to services provided by the RTA in respect to issuing a drivers licence, specifically decisions as to the suspension of the licence, and refusal of application to renew the licence/have a suspension lifted. The Respondent contends that the RTA, in taking actions in relation to the suspension of the licence, refusal to lift the suspension or refusal of licence renewal application, is not supplying a service within the meaning of the Anti-Discrimination Act. In the present case, given the Tribunal’s conclusions on other issues as discussed above, the Tribunal did not have to determine whether the RTA was providing a service to Ms Hubbard.

Order

The Tribunal ordered that the application is dismissed.