Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282
Hearing dates:
11 October 2016
Date of orders:
29 November 2016
Decision date:
29 November 2016
Jurisdiction:
Administrative and Equal Opportunity Division
Before:
Hennessy LCM, Deputy President
Decision:
The application for dismissal for want of prosecution is dismissed. The application for dismissal as lacking in substance is dismissed.
Catchwords:
SUMMARY DISMISSAL – application to dismiss complaint of disability discrimination for want of prosecution and as lacking in substance – depends on circumstances of case – self-represented applicant – cause of delay -
Bernard Carins, Australian Civil Procedure (10th edition, Thomson Reuters)
Category:
Procedural and other rulings
Parties:
Greg Chalker (Applicant) Murrays Australia Pty Ltd
Representation:
Solicitors: Applicant (self-represented) Clyde & Co Australia (Respondent)
File Number(s):
1610293
Publication restriction:
Nil
REASONS FOR DECISION
Overview
Murrays Australia Pty Ltd has applied for Mr Chalker’s complaint of disability discrimination to be dismissed as lacking in substance or because he has failed to progress his complaint quickly.
Mr Chalker applied for a position of coach driver with Murrays Australia. As part of the assessment process he attended a medical assessment and completed a “driver questionnaire form”. He alleges that he was not offered the position because he was perceived to have a disability.
I have decided not to dismiss the complaint. Mr Chalker is self-represented. He has attempted to comply with the Tribunal’s directions but through a combination of not understanding what he needed to do and the stress associated with the litigation he has not fully complied. Nor is the complaint lacking in substance. Mr Chalker’s complaint cannot be said to be “not reasonably arguable”.
Failing to progress the complaint
Factual background
On 3 May 2016 The President of the Anti-Discrimination Board referred Mr Chalker’s complaint of disability discrimination in employment to the Tribunal. A case conference was held on 29 June 2016 when detailed directions were made. The parties were offered mediation but Murrays Australia decided not to participate. Mr Chalker was given until 10 August 2016 to provide basic details about the legal basis for…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Chalker v Murrays Australia Pty Ltd
Sign in free to access the full text
Details
AGLC
Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282
Case
[2016] NSWCATAD 282
Decision Date
CaseChat Overview and Summary
The case of Chalker v Murrays Australia Pty Ltd involved an application to dismiss a complaint of disability discrimination. The applicant, Chalker, appeared self-represented and sought dismissal on the grounds of both want of prosecution and the complaint being lacking in substance. The court was tasked with determining whether the application should be dismissed based on these grounds.
The legal issues before the court included whether the applicant's delays in pursuing the complaint justified dismissal for want of prosecution and whether the complaint had any substance. The court considered the nature of the delays and the reasons provided by the applicant. Given that the applicant was self-represented, the court exercised caution in assessing the merits of the complaint.
The court found that the applicant's delays did not warrant dismissal for want of prosecution. While there were delays, the applicant provided satisfactory explanations for these delays, which the court found acceptable. The court also determined that the complaint was not lacking in substance, as it had sufficient details to warrant further investigation. Consequently, both applications for dismissal were dismissed.
The final orders of the court were to dismiss the application for dismissal for want of prosecution and to dismiss the application for dismissal as lacking in substance. This allowed the complaint to proceed, ensuring that the applicant's right to pursue the disability discrimination claim was upheld.
Orders
Orders of the court
The application for dismissal for want of prosecution is dismissed.
The application for dismissal as lacking in substance is dismissed.