Docherty v The Smith Family

[2011] NSWADT 26

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Docherty v The Smith Family [2011] NSWADT 26

Hearing dates:

12 August 2010

Decision date:

09 February 2011

Jurisdiction:

Equal Opportunity Division

Before:

R Perrignon, Judicial Member

Decision:

1) The Respondent's application under section 102 is dismissed, on terms that the claim is particularised in the manner set forth in these reasons, and that an order for costs is made in favour of the Respondent.

2) Orders giving effect to this decision, as set out in these reasons, will be made within fourteen days.

3) Grant leave to the parties to file and serve written submissions on proposed order no 7 (as to costs) within fourteen days.

Catchwords:

DISCRIMINATION - on grounds of disability and carer's responsibilities - application to dismiss claim - want of prosecution - repeated failure to comply with orders of Tribunal

Legislation Cited:

Anti-Discrimination Act 1977

Cases Cited:

Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5
Fei v Director-General, Dept of Commerce (State of NSW) (No2) [2009] NSWADT 109
Hoser v Hartcher [1999] NSWSC 527
MT v AA (No 2) EOD [2010] NSWADTAP 28
O'Sullivan v NSW Medical Board (No 2) [2010] NSWADT 188
Rae v Commissioner of Police, New South Wales Police Force (No 2) [2010] NSWADT 36
Tu v University of Sydney (No. 2) [2002] NSWADTAP 25
Haas v Hosking (No 2) [2010] NSWADT 203

Category:

Principal judgment

Parties:

Sharon Docherty (Applicant)
The Smith Family (Respondent)

Representation:

K Nomchong (Respondent)
S Docherty (Applicant - in person)

File Number(s):

091088

Judgment

REASONS FOR DECISION

1. The Respondent applies for an order dismissing the proceedings for want of prosecution, pursuant to section 102 of the Anti-Discrimination Act 1977 ('the Act'), by reason of the Applicant's repeated failure to comply with the orders of the Tribunal.

1. This is the second formal application by the Respondent for summary dismissal. The first such application was dismissed on 31 March 2010. The reasons are set out below. The Respondent submits that the power to dismiss should be exercised on this occasion, for the following reasons.

1) Ms Docherty has repeatedly failed to comply with the Tribunal's orders, without reasonable excuse.

2) On each occasion, she has alleged that delay was caused by the actions or inactions of her solicitors, her own impecuniosity or family illness, without providing any convincing evidence of it.

3) Her repeated failures to comply with the Tribunal's orders have caused serious prejudice to the Respondent's ability to meet the complaint. There are no Points of Claim for it to answer, or which would enable it to meet the Applicant's claim. It is a charitable institution, many of whose workers are volunteers. The complaint period goes back to July 2007, and a number of crucial witnesses have left their employment with The Smith Family. They may or may not now be available to assist.

4) Because of the general rule that costs do not automatically follow the event, the Respondent's chances of obtaining costs orders from which it…