Murtough v NSW Bar Association - [2011] NSWADT 243

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Murtough v NSW Bar Association [2011] NSWADT 243
Hearing dates: 13 October 2011
Decision date: 21 October 2011
Jurisdiction: Equal Opportunity Division
Before: Magistrate N Hennessy, Deputy President
Decision:
(1) The respondent's application for the complaint to be summarily dismissed is refused.
(2) The matter is listed for a case conference at 3pm on 1 November 2011.

Catchwords: Application for summary dismissal - whether pleadings and evidence so deficient as to justify summary dismissal - principles of summary dismissal - pleadings and particulars in Equal Opportunity Division - costs
Legislation Cited: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1998
Legal Profession Act 2004
Cases Cited: Dey v Victorian Railways Commissioners [1949] HCA 1
General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125
Rana v University of South Australia (2004) 136 FCR 344
Langley v Niland [1981] 2 NSWLR 104
Minister for Ethnic Affairs v Pochi (1980) 44 FLR 41
Commissioner of Police, NSW Police Force v Butcher [2010] NSWADTAP 9
Rae v Commissioner of Police, New South Wales Police Force (No 2) [2010] NSWADT 36
Margan v University of Technology, Sydney [2003] NSWADTAP 65
Forrester v AIMS Corporation [2004] VSC 506
Chapman v Australian Broadcasting Commission (2000) 77 SASR 181
Razaghi v Director-General, NSW Department of Health [2002] NSWADT 4
Texts Cited: Bernard Cairns, Australian Civil Procedure, 8th edition, Thomson Reuters
Rees, Lindsay & Rice, Australian Anti-Discrimination Law, The Federation Press, 2008
Category: Interlocutory applications
Parties: Christopher Murtough
New South Wales Bar Association
Representation: Counsel
P Lowson (Applicant)
C Ronalds, SC (Respondent)
Peter Baker, solicitor (Applicant)
Marque Lawyers Pty Ltd (Respondent)

File Number(s): 091125

REasons for decision

Introduction

Mr Murtough wants to obtain a practising certificate to practise as a barrister in New South Wales. He complained that the New South Wales Bar Association discriminated against him on the ground of disability (mental illness) by requiring him to sit for Bar examinations and subsequently refusing his applications for a practising certificate in 2009 and 2011 when he did not pass those examinations. He says that this treatment constitutes disability discrimination by a "qualifying body" in breach of s 49J of the Anti-Discrimination Act 1977 ( AD Act ).

Mr Murtough alleges that previous decisions in 2006 and 2007 to refuse his applications for practising certificates were made on the ground of his mental illness. As a result of those decisions, Mr Murtough says that he did not practice for a period of time, leading to the requirement to re-sit the examinations. Mr Murtough seeks to draw a causal connection between the 2006 and 2007 decisions (which he says were on the ground of his disability) and the decisions in 2009 and 2011 to require him to sit for the Bar examinations and to refuse him a practising certificate when he failed.

The Bar Association has applied for the summary dismissal of Mr Murtough's complaint. The grounds for summary dismissal are that:

(1) the conduct alleged, if proven,…

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: [2011] NSWADT 243
Decision Date: 21 October 2011

CaseChat Overview and Summary

In the case of Murtough v NSW Bar Association, the applicant, Murtough, sought relief against the respondent, the NSW Bar Association, in the Equal Opportunity Division. The dispute centred on whether the complaint lodged by Murtough was so deficient in its pleadings and evidence that it warranted summary dismissal. The court was tasked with determining if the principles governing summary dismissal applied in this instance and if the complaint's particulars warranted dismissal without proceeding to a substantive hearing. Additionally, the court had to consider the costs associated with the application.

The legal issues before the court encompassed whether the complaint's deficiencies were sufficient to warrant summary dismissal under the relevant legal principles. The court needed to assess whether the complaint met the necessary standards required for a proceeding in the Equal Opportunity Division. Furthermore, the court had to evaluate the adequacy of the pleadings and particulars submitted by the applicant and decide if these were sufficient to warrant a substantive hearing.

The court found that the pleadings and particulars in the complaint were inadequate and did not meet the required standards. However, the deficiencies did not reach the threshold for summary dismissal. The court reasoned that while the complaint was deficient, it was not so lacking in substance that it justified summary dismissal. The court also noted that a case conference would provide an opportunity for the applicant to rectify these deficiencies. Consequently, the court refused the respondent's application for summary dismissal and scheduled a case conference to allow the applicant to amend the pleadings and evidence.

The final orders included the refusal of the application for summary dismissal and the scheduling of a case conference to be held at 3pm on 1 November 2011. The court did not award costs at this stage of the proceedings.

Orders

Orders of the court

(1) The respondent's application for the complaint to be summarily dismissed is refused.

(2) The matter is listed for a case conference at 3pm on 1 November 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Murtough v NSW Bar Association [2011] NSWADT 243
Hearing dates:	13 October 2011
Decision date:	21 October 2011
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	(1) The respondent's application for the complaint to be summarily dismissed is refused. (2) The matter is listed for a case conference at 3pm on 1 November 2011.
Catchwords:	Application for summary dismissal - whether pleadings and evidence so deficient as to justify summary dismissal - principles of summary dismissal - pleadings and particulars in Equal Opportunity Division - costs
Legislation Cited:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1998 Legal Profession Act 2004
Cases Cited:	Dey v Victorian Railways Commissioners [1949] HCA 1 General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 Rana v University of South Australia (2004) 136 FCR 344 Langley v Niland [1981] 2 NSWLR 104 Minister for Ethnic Affairs v Pochi (1980) 44 FLR 41 Commissioner of Police, NSW Police Force v Butcher [2010] NSWADTAP 9 Rae v Commissioner of Police, New South Wales Police Force (No 2) [2010] NSWADT 36 Margan v University of Technology, Sydney [2003] NSWADTAP 65 Forrester v AIMS Corporation [2004] VSC 506 Chapman v Australian Broadcasting Commission (2000) 77 SASR 181 Razaghi v Director-General, NSW Department of Health [2002] NSWADT 4
Texts Cited:	Bernard Cairns, Australian Civil Procedure, 8th edition, Thomson Reuters Rees, Lindsay & Rice, Australian Anti-Discrimination Law, The Federation Press, 2008
Category:	Interlocutory applications
Parties:	Christopher Murtough New South Wales Bar Association
Representation:	Counsel P Lowson (Applicant) C Ronalds, SC (Respondent) Peter Baker, solicitor (Applicant) Marque Lawyers Pty Ltd (Respondent)
File Number(s):	091125