Martin v Hunter Personnel Pty Ltd

[2002] NSWADT 53

CITATION:	Martin -v- Hunter Personnel Pty Ltd & ors [2002] NSWADT 53
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Cathlene Martin RESPONDENTS Hunter Personnel Pty Ltd Hugh McKensey Paul Hankinson Victor Lewis Peter Hicks
FILE NUMBER:	981007
HEARING DATES:	11/02/2002
SUBMISSIONS CLOSED:	02/11/2002
DATE OF DECISION:	04/11/2002
BEFORE:	Rees N - Judicial Member; Mooney L - Member; Silva A - Member
APPLICATION:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Commissioner of Police v Orr [2001] NSWADTAP 16 McGlade v HREOC [2000] FCA 1477 Crewdson v Niland [2002] NSWADTAP 5 Razaghi v Director-General, NSW Department of Health [2002] NSWADT 4
REPRESENTATION:	D Hillard, solicitor R Warren, barrister
ORDERS:	1. Application by the respondents that the complaint be dismissed pursuant to s111 of the Anti-Discrimination Act 1977 refused; 2. The applicant to file and serve Amended Points of Claim, statements of witnesses and copies of documents upon which she seeks to rely within 28 days of the date of publication of these reasons; 3. The second, third, fourth and fifth respondents to file and serve Amended Points of Defence, statements of witnesses and copies of documents upon which they seek to rely within 28 days of receiving the documents referred to in Order 2; 4. The parties be granted leave to approach the Registrar for the allocation of hearing dates; 5. The parties be granted leave to restore this matter for further directions and/or orders upon 7 days notice.

1 In this case the respondents have applied for an order pursuant to s111 of the Anti-Discrimination Act 1977 (the Act) that the complaint before the Tribunal be dismissed. The complainant (the applicant in this inquiry), Ms Cathlene Martin, has alleged that the five respondents, Hunter Personnel Pty Ltd, Mr Hugh McKensey, Mr Paul Hankinson, Mr Victor Lewis, and Mr Peter Hicks discriminated against her, in employment, on the ground of disability.

2 The application by the respondents was heard by the Tribunal in Sydney on 11 February 2002. The parties were legally represented: the respondents by Mr Warren, and the applicant by Mr Hillard. It was common ground between the parties that the first respondent, Hunter Personnel Pty Ltd, was wound up by order of the Supreme Court of New South Wales on 24 September 1999 and is now deregistered. Consequently, for the reasons which appear below, it appears that the first respondent cannot participate in these proceedings and that Mr Warren was only able to appear for the second to the fifth respondent.

3 In the paragraphs that follow we have set out the background to this complaint, the submissions made in support of, and in opposition to, the s111 application, and our reasons for refusing that application. In addition, we have made various directions for the future conduct of this inquiry.

History of the proceedings

4 In order to set out the history of this complaint it has been necessary to make reference to the report of the President of the Anti-Discrimination Board (the President), which has been provided to the Tribunal in accordance with s94(1) of the Act. Whilst this report has not yet been admitted into evidence, it is not in dispute between the parties that the applicant lodged a complaint under the Act with the President, which was subsequently referred to this Tribunal for the purpose of an inquiry. The relevant dates and occurrences referred to in that report are the same as those set out in the written submissions filed by the respondents in support of the s111 application. For the sake of caution we should point out that we have made no conclusive findings in relation to these matters; they are referred to in this document in order to set out the background against which the application for dismissal pursuant to s111 has been made.

5 On 14 August 1997 the applicant lodged a complaint of discrimination in employment on the ground of disability against the second, third, fourth and fifth respondents and Forsythes Partners. In her complaint the applicant claimed that she had commenced employment with Forsythes Partners on 22 January 1992. According to the President’s report, the applicant claims that her employment was transferred from Forsythes Partners to Forsythes Personnel Pty Limited on 1 July 1995. It is also alleged that the name of this company was changed to Hunter Personnel Pty Limited in February 1997. As we have already noted, it is common ground between the parties that this latter company has been deregistered, having been wound up on 24 September 1999.

6 As the complaint was not resolved by the President, it was referred to the Tribunal for inquiry. The complaint, which was received by the Tribunal on 2 November 1998, was first listed for directions on 4 December 1998. By consent, the matter was not dealt with on that date and it was re-listed for directions on 15 January 1999. The parties were legally represented at the directions hearing when the ‘usual directions’ were made; the applicant was directed to file Points of Claim and statements of evidence within 28 days, and the respondents were directed to file Points of Defence and statements of evidence within a further 28 days. A perusal of the Tribunal file reveals that neither the applicant nor the respondents complied with these directions. Whilst the applicant filed Points of Claim on 12 February 1999, her one and only witness statement was not filed until 6 September 1999. These documents were filed with the Tribunal by the solicitors then acting for the applicant, Geoffrey Edwards & Co. The respondents did not file Points of Defence until 3 May 1999. No witness statements have been filed by the respondents.

7 A mediation conference scheduled for 9 November 1999 was cancelled, on 8 November 1999, at the request of the solicitors for the respondents because those solicitors claimed to have just received notification that the first respondent had been wound up on 24 September 1999. Thereafter, the case moved slowly. On 15 December 1999 the respondents informed the Tribunal that they wished to make an application pursuant to s111 of the Act that the complaints be dismissed. This application was listed for hearing on 27 March 2000. On 2 February 2000 Geoffrey Edwards & Co informed the Registrar that they no longer acted for the applicant. On 21 March 2000 the applicant wrote to the Registrar with the request that the hearing date for the s111 application be vacated as she had applied for legal aid and did not anticipate a response prior to 27 March 2000. The respondents’ solicitor agreed to this application and the hearing date was vacated.

8 The Registrar contacted the parties in September 2000 to enquire about the progress of the matter. It was listed for a case conference on 23 January 2001. On that date the applicant appeared in person and the respondents were legally represented. The respondents indicated that they wished to proceed with the s111 dismissal application. It was directed that the application be set down for hearing, on a date to be determined by the Registrar, not earlier than 8 weeks from the date of the case conference. This period was chosen in order to permit the applicant to continue in her quest for legal assistance. The respondents were directed to file material in support of the s111 application within 6 weeks of the date of the case conference. The s111 application was not set down for hearing by the Registrar, as directed, because the parties did not respond to her request for suitable hearing dates and the respondents did not file any materials in support of their application.

9 The application was then set down for hearing on 2 October 2001. This date was vacated, at the request of the applicant, as she informed the Registrar that she was still pursuing enquiries for legal assistance. A further case conference was scheduled for 6 November 2001. On that date the s111 application was set down for hearing on 11 February 2002. As the respondents had not filed any materials in support of the s111 application they were directed to file any such materials within 6 weeks. At that case conference the applicant informed the Tribunal that she was seeking pro bono legal assistance from Clayton Utz, solicitors.

The respondents’ s111 application

10 The respondents advanced five grounds in support of their application that the complaint be summarily dismissed pursuant to s111 of the Act. Those grounds were:

a) failure to prosecute the complaint
b) inability to proceed against the first respondent
c) inability to proceed against the second, third, fourth and fifth respondents in their capacities as directors of the first respondent
d) failure to particularise the allegations against the second, third, fourth and fifth respondents
e) prejudice to the respondents due to the effluxion of time.

We have set out the arguments advanced in support of these grounds, together with our conclusions, at paragraphs 12 to 22, below.

11 Mr Hillard, for the applicant, opposed the s111 application. He informed the Tribunal that his firm had only recently determined to offer pro bono legal assistance to the applicant. An application for pro bono assistance was initially made over a year ago but, at that stage, it was not possible to accept the case. A second, more recent, application for assistance by the applicant was successful.

Conclusions

12 By implication, section 111 of the Act permits a respondent to apply to the Tribunal at any stage of proceedings for an order that the complaint before it be dismissed. That section permits the Tribunal to dismiss a complaint if satisfied that it is “frivolous”, “vexatious”, “misconceived”, “lacking in substance”, or “for any other reason should not be entertained”. There is nothing in the Act which prevents a s111 application being made prior to the commencement of the hearing, as has happened in this case. Such an application is akin to an application for summary dismissal in civil proceedings. The Tribunal is also given the power to dismiss proceedings, at any stage, by s73(5) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). As s111 of the Anti-Discrimination Act is worded a little more broadly than s73(5) of the Tribunal Act, and as the powers granted by the Tribunal Act are designed to complement, rather than derogate from, those granted by the Anti-Discrimination Act (see s111(3)), dismissal applications are usually made pursuant to s111, as has happened in this case.

13 There is a considerable body of authority concerning the circumstances in which a complaint may be dismissed pursuant to s111. Some of the relevant cases are usefully summarised in an Appeal Panel decision, Commissioner of Police v Orr [2001] NSWADTAP 16. There is no reason to depart from the view expressed in that case that the power to summarily dismiss a complaint pursuant to s111 should be exercised with exceptional caution. Similar comments were made in the Federal Court about the summary dismissal of complaints under Commonwealth anti-discrimination legislation (see McGlade v HREOC [2000] FCA 1477 (per Carr J). This approach mirrors that taken by courts when dealing with summary dismissal applications in civil proceedings (see B Cairns, Australian Civil Procedure, 4th ed, Sydney: LBC Information Services, 1996 at p242).

14 The respondents have submitted that the complaint lodged against them should be summarily dismissed because of the applicant’s failure to prosecute the matter. Whilst counsel for the respondents did not identify the ground in s111 upon which he relied, we assume it was “for any other reason the complaint should not be entertained”, for the application does not appear to fall within any of the other grounds. An Appeal Panel of the Tribunal recently held in Crewdson v Niland [2002] NSWADTAP 5 that s111(1) of the Act was broad enough to be invoked when there had been “a failure to diligently prosecute a complaint”.

15 In this case the applicant could not be accused of prosecuting her complaint with haste. It was not disputed, however, that she unsuccessfully applied for pro bono legal assistance over a year ago and that, despite an initial rejection of that application, she has now secured pro bono assistance from Clayton Utz. In these circumstances the respondents’ argument appears to fall away. We believe it appropriate to take notice of the fact that due to the complexities of anti-discrimination law it is extremely difficult for an unrepresented applicant to prepare and present his or her case. In the absence of legal aid from the Legal Aid Commission of NSW, applicants who are unable to afford the cost of private legal assistance must seek to rely upon community legal centres, or law firms which provide pro bono legal assistance, if they wish to be legally represented. Legal assistance of this nature is entirely discretionary.

16 Now that the applicant has been granted pro bono legal assistance it can reasonably be anticipated that, henceforth, she will diligently prosecute her complaint. Neither side has complied, in a timely manner, with the procedural directions made by the Tribunal in the past. The second, third, fourth and fifth respondents are not in a position to assert that, in contrast to the applicant, they have consistently taken timely steps in these proceedings. In the circumstances we are not persuaded that the complaint should be dismissed because of the applicant’s failure to prosecute the complaint. Thus, the first ground advanced in support of the respondents’ s111 application fails.

17 It would appear that the applicant is unable to maintain her complaint against the first respondent. The undisputed evidence before us is that the first respondent was wound up by Supreme Court order made on 24 September 1999, and that it was subsequently deregistered. According to s601AD of the Corporations Act 2001, a company ceases to exist on deregistration. This does not necessarily mean, however, that the applicant is unable to proceed against the other respondents. It does appear to mean, however, that no one can represent the first respondent in these proceedings. Accordingly, it would seem that Mr Warren and his instructing solicitors may only represent the second, third, fourth and fifth respondents in this case.

18 Whilst the Anti-Discrimination Act renders it unlawful for an employer to discriminate against an employee on the ground of disability in various ways (see s49D(2)), s52 of the Act provides that it is also unlawful for a person “to cause, instruct, induce, aid, or permit another person to do an act that is unlawful by reason of a provision of this Act”. Thus, s52 operates to extend liability under the Act to a person other than the employer of the alleged victim. Section 53(2) provides that an employer and its employee, or a principal and its agent, may be jointly and severally liable when both are subject to liability under the Act.

19 There is no suggestion in this case that when the alleged discriminatory conduct took place the first respondent was deregistered, or was otherwise incapable of being an employer to which the Act applied. Even though the subsequent deregistration of the first respondent renders it impossible for the applicant to pursue any litigation against it, it remains open to the applicant to argue that she should be permitted to proceed against the remaining respondents in relation to any contraventions of the Act which they are alleged to have committed by virtue of s52. Whether she can establish any liability on their behalf under s52 is a matter yet to be determined. Whether the applicant can establish liability against the second to the fifth respondent in their capacity as former directors of the first respondent, or in some other capacity, is a matter subsumed within the broader question of s52 liability.

20 The applicant should not be summarily denied the opportunity to present her case just because it is not possible to proceed against her former employer, the first respondent. Whilst the respondents appear to be correct in their assertion that the applicant’s Points of Claim “do not plead any valid cause of action against the Second, Third, Fourth, and Fifth Respondents in their capacities as directors of the First Respondent as prescribed by the provisions of the Anti-Discrimination Act 1977”, this matter can be cured by directing the applicant to file Amended Points of Claim. As the applicant made specific reference to the second, third, fourth and fifth respondent in her initial letter of complaint to the President of the ADB, dated 12 August 1997, there can be no suggestion that these respondents are a late addition to the complaint following the deregistration of the first respondent. The second and third grounds advanced in support of the respondents’ s111 application fail.

21 The respondents assert that on two occasions they requested the applicant to provide particulars of the allegations against the second, third, fourth and fifth respondents and that these requests were not answered. No evidence was offered in support of this assertion. It is not claimed that the applicant was at any stage directed by the Tribunal to provide particulars of the allegations against the second to the fifth respondent. In an extreme case failure to provide particulars may warrant a complaint being dismissed pursuant to s111 of the Act because of denial of procedural fairness to the respondent (see Razaghi v Director-General, NSW Department of Health [2002] NSWADT 4). The second, third, fourth and fifth respondent are entitled to reasonable particulars of the allegations against them. As we propose to direct that the applicant file Amended Points of Claim it is reasonable to expect that those particulars will be provided in that document. In the event that they are not, the respondents are at liberty to seek a direction from the Tribunal that reasonable particulars be provided. It follows that the fourth ground advanced in support of the s111 application must fail.

22 Finally, the respondents assert that due to the effluxion of time since the applicant’s complaint was lodged with the President of the ADB many relevant witnesses have left the employment of the group of companies with which the second to the fifth respondent are, or were, involved. Consequently, it is argued that the respondents would be unfairly prejudiced by the difficulty in locating these potential witnesses and securing their attendance at a hearing. This is an argument without merit. The President’s report reveals that on 19 January 1998 the President wrote to the second, third, fourth and fifth respondent providing them with details of the applicant’s complaint. Thus the respondents have been on notice since a few months after the initial complaint to the President that a complaint under the Anti-Discrimination Act had been lodged against them. They have had ample time to obtain statements from potential witnesses. Section 84 of the Tribunal Act permits the respondents to approach the Registrar to issue a summons to compel the attendance of a witness if a person is unwilling to voluntarily attend a Tribunal hearing. The fifth ground advanced in support of the s111 application must fail.

23 As we have already indicated, the applicant will be directed to file Amended Points of Claim. She will also be directed to file statements of any witnesses she proposes to call, and copies of any documents upon which she seeks to rely. The Tribunal file already contains an affidavit by the applicant, sworn on 2 September 1999. She must file a further affidavit, or statement, if she proposes to give any evidence in addition to that set out in the affidavit of 2 September 1999. In the Amended Points of Claim the applicant should provide reasonable details of the allegations against each of the respondents. The respondents will be directed to file Amended Points of Defence, witness statements and copies of any documents upon which they seek to rely. Once the necessary documents have been filed the parties may approach the Registrar for the allocation of hearing dates. In the event that further procedural directions are required prior to the hearing the parties are at liberty to request the Registrar to re-list the matter for directions.

Decision and Orders

24 The respondents have not satisfied the Tribunal that the applicant’s complaint should be dismissed pursuant to s111 of the Act. The Tribunal makes the following orders and directions:

(1) Application by the respondents that the complaint be dismissed pursuant to s111 of the Anti-Discrimination Act 1977 refused.
(2) The applicant to file and serve Amended Points of Claim, statements of witnesses and copies of documents upon which she seeks to rely within 28 days of the date of publication of these reasons.
(3) The second, third, fourth and fifth respondents to file Amended Points of Defence, statements of witnesses and copies of documents upon which they seek to rely within 28 days of receiving the documents referred to in Order 2.
(4) The parties be granted leave to approach the Registrar for the allocation of hearing dates.
(5) The parties be granted leave to restore this matter for further directions and/or orders upon 7 days notice.