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Supreme Court Upholds Suspension of Discrimination Lawsuit by Openly Gay Lawyer

On Thursday, May 13, 2021, a significant ruling was delivered as the Supreme Court chose to uphold the permanent halt on a discrimination case brought forward by an openly gay lawyer. The decision comes in the wake of the lawyer’s refusal to partake in a psychiatric assessment, paid for by his law firm and to be conducted by a specialist of their choosing.

The lawyer, a former employee at Kott Gunning, has accused the firm of violating both the Disability Discrimination Act and the Sex Discrimination Act. His allegations encompass receiving smaller pay increases than his colleagues and experiencing continued offensive behavior. Instances of this behavior included coworkers questioning his sexual orientation and making baseless accusations of drug use and involvement in prostitution.

Justices Neil McKerracher, Duncan Kerr, and Natalie Charlesworth ruled against allowing an appeal to a provisional ruling made a year earlier by Justice Darren Jackson. This earlier ruling had mandated the lawyer to undertake a psychiatric assessment. According to the justices, there was no resulting “injustice” from the upheld ruling, and there was no reason to doubt the validity of Justice Jackson’s conclusions or his underlying rationale.

The firm had proposed the psychiatric evaluation upon receiving confidential information that the lawyer had been diagnosed with paranoia and a delusional disorder. The lawyer, however, disputed both the diagnosis and the firm’s use of it as justification for the compulsory assessment.

The court issued a permanent halt to the lawyer’s claim for damages following his sustained refusal to participate in the psychiatric evaluation. The lawyer argued that the court was overstepping its jurisdiction in the matter by compelling a psychiatric evaluation and that Kott Gunning had wrongly procured information regarding his diagnosis, which Justice Jackson relied on unduly.

In an effort to challenge the ruling, the lawyer cited s24(1C)(a) of the Federal Court Act, asserting that the imposed medical examination was an infringement on personal liberty. He also suggested that the court’s power to compel medical examinations at a respondent’s request without specific statutory authority satisfied the test under s24(1C)(a) of the Federal Court Act, “as it affects an applicant’s liberty or the liberty of an individual who brings a claim under the AHRC Act”.

However, the Supreme Court disagreed with the lawyer’s stance, holding firm to the need for permission to proceed with the challenge. The court deemed the medical examination order as neither a directive compelling the psychiatric assessment nor an order resulting in a total deprivation of physical liberty. It was established that the lawyer had the choice not to participate in the evaluation, but by doing so, he forfeited his right to continue the proceedings or present his medical evidence.

Further, the court determined that the lawyer was unable to meet the two requirements for appeal: demonstrating significant doubt about the primary judgment warranting reconsideration, and showing that considerable injustice would occur if the appeal was denied. One new claim brought by the lawyer was that Justice Jackson disregarded the Evidence Act by accepting Kott Gunning’s “improperly obtained” details about his mental health diagnosis. Yet, the court pointed out that this argument had not been presented during the interlocutory case, hence the judge could not be faulted for not considering it.

Lastly, the court noted the challenges faced by individuals with serious mental health issues in the litigation system. It highlighted the urgent need for a more efficient and appropriate system that allows these cases to be resolved effectively. Despite the court’s empathy, it recognized the necessity to respect the rights of all parties involved and the limited resources available for case consideration.

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