Fletcher v TNT Australia Pty Limited - [2013] NSWSC 1220

Supreme Court

New South Wales

Medium Neutral Citation: Fletcher v TNT Australia Pty Limited [2013] NSWSC 1220
Hearing dates: 5 November 2012 and 6 May 2013
Decision date: 03 September 2013
Jurisdiction: Common Law
Before: Adams J
Decision:
The amended summons is dismissed with costs.

Catchwords: PRACTICE AND PROCEDURE - application to dismiss proceedings for want of prosecution - appeal to the Supreme Court under s 69 of the Supreme Court Act 1970 from the Equal Opportunity Division of the Administrative Decisions Tribunal - no arguable grounds disclosed - summons summarily dismissed
Legislation Cited: Anti-Discrimination Act 1977
Uniform Civil Procedure Rules 2005
Supreme Court Act 1970
Cases Cited: Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51
O'Callaghan v Loder [1983] 3 NSWLR 89
Hall v A&A Sheiban Pty Ltd (1989) 20 FCR 217
Category: Principal judgment
Parties: Fletcher (Plaintiff)
TNT Australian Pty Limited (Defendant)
Representation: Counsel:
N Furlan (Defendant)
Solicitors:
Self-represented (Plaintiff)
McKells Solicitors (Defendant)

File Number(s): 2012/43283

Judgment

Introduction

In July 2011 Mr Fletcher brought proceedings in the Equal Opportunity Division of the Administrative Decisions Tribunal complaining of race discrimination under the Anti-Discrimination Act 1977. The complaint, which was against his former employer TNT Australia Pty Limited (TNT), was declined by the President of the Anti-Discrimination Board. Mr Fletcher sought leave to proceed with his complaint in the Equal Opportunity Division of the Administrative Decisions Tribunal. Leave was refused and Mr Fletcher took proceedings in this Court in an endeavour to reverse that outcome.

Background

The dispute arose when Mr Fletcher was working with TNT as a dockhand between 2005 and August 2010. The period covered by his complaint was 21 July 2009 to 21 July 2010, although there were several allegations concerning events before that period which are presently immaterial. Mr Fletcher raised a number of matters. Briefly, they involved a refusal to pay him paternity leave, short payment of $60 a week, being told a company sponsored course which he wished to undertake was available to suitable, as distinct from all, employees, losing out on overtime, being disciplined for a mistake he made whilst another unnamed colleague who made the same mistake was not disciplined, not being provided with proper assistance when he was sick at work and comments by other employees which gave him offence.

The decision of the Tribunal

The Tribunal, noting the complaints, considered the legal requirements under s 8(2)(a), (b) or (c) of the Anti-Discrimination Act relating to the terms and conditions of employment, access to promotion, training or other benefits and being subject to "any other detriment" and to the definitions of direct and indirect discrimination contained in s 7 of the Act. It is clear that Mr Fletcher was complaining of direct discrimination. The Tribunal noted that the alleged conduct fell within the areas in which the Act, in appropriate cases, applied, noting however, that the alleged comments made by fellow workers and managers were in a different category because…

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.

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Details

Case: [2013] NSWSC 1220
Decision Date: 03 September 2013

CaseChat Overview and Summary

The applicant, Fletcher, appealed to the Supreme Court against a decision by the Equal Opportunity Division of the Administrative Decisions Tribunal, which dismissed their proceedings for want of prosecution. The respondent, TNT Australia Pty Limited, was the subject of an application by the applicant to set aside an order for dismissal, which was denied by the Tribunal. The applicant's case involved allegations of unlawful discrimination and victimisation in the workplace, which were not pursued with the required diligence, leading to the Tribunal's order for dismissal. The Supreme Court considered the application under section 69 of the Supreme Court Act 1970 to assess whether the applicant had disclosed any arguable grounds for appeal.

The court had to determine whether the applicant had demonstrated any arguable grounds for appeal against the Tribunal's decision to dismiss the proceedings for want of prosecution. The central issue was whether the applicant's arguments and submissions had any reasonable prospect of success, as required by the relevant legal principles. The court examined the applicant's submissions, including their claims of misunderstanding and lack of resources, and weighed these against the Tribunal's findings and the applicable legal standards.

The Supreme Court found that the applicant had not disclosed any arguable grounds for appeal. The court held that the applicant's arguments were not sufficient to establish a reasonable prospect of success on appeal. The court considered the applicant's submissions regarding the misunderstanding and lack of resources to be inadequate to rebut the Tribunal's findings that the proceedings had been abandoned or neglected. The court emphasised that an appeal against a decision to dismiss proceedings for want of prosecution must demonstrate a reasonable prospect of success, and the applicant's submissions did not meet this standard. Consequently, the Supreme Court dismissed the summons summarily, affirming the Tribunal's decision.

The final orders of the Supreme Court were that the summons be dismissed with costs. The court held that the applicant had not demonstrated any arguable grounds for appeal, and therefore, the appeal was without merit. The costs of the appeal were awarded to the respondent, TNT Australia Pty Limited. This decision reinforces the importance of maintaining diligent prosecution of legal proceedings, particularly in matters involving administrative tribunals, to avoid dismissal for want of prosecution.

Orders