Murtough v NSW Bar Association
[2011] NSWADT 243
•21 October 2011
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 2004Cases 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 4Texts Cited: Bernard Cairns, Australian Civil Procedure, 8th edition, Thomson Reuters
Rees, Lindsay & Rice, Australian Anti-Discrimination Law, The Federation Press, 2008Category: Interlocutory applications Parties: Christopher Murtough
New South Wales Bar AssociationRepresentation: 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, would not disclose a contravention of the AD Act; and
(2) Mr Murtough has failed to plead his complaint in a way which allows the Bar Association to know the case it is required to meet and/or has failed to provide adequate particulars of his complaint; and
(3) the complaint is frivolous, vexatious, misconceived or lacking in substance.
Alternatively, the Bar Association seeks an order that Mr Murtough amend his Points of Claim, provide further particulars and file further evidence.
Mr Murtough opposes these applications. He says that his complaint as outlined in the Points of Claim and the Points in Reply discloses a contravention of the AD Act and is sufficiently particularised. He says that the evidence he has filed in support of his complaint (comprising a bundle of sixteen documents) demonstrates that his complaint is not frivolous vexatious misconceived or lacking in substance.
Background
Mr Murtough was first admitted as a barrister in NSW in 1978. He held an annual practising certificate issued by the Bar Association during various non-continuous periods from 1995 to 2006. Practising certificates expire on 30 June each year.
Mr Murtough has a history of mental illness commencing, according to one medical report, in August 1997.
In February 2006, the Bar Association suspended Mr Murtough's practicing certificate. He did not apply for a practising certificate for the 2006/2007 year until 26 October 2006. On 19 December 2006 the Bar Association resolved not to grant Mr Murtough a practising certificate for that year and gave him an Information Notice dated 21 December 2006 pursuant to the Legal Profession Act 2004. Mr Murtough applied again on 2 April 2007. That application was refused on 28 June 2007. Mr Murtough applied again on 2 July 2007 for the 2007/08 year. That application was refused on 12 July 2007.
The reason given in each of the Information Notices for refusing Mr Murtough's application was that he was not a fit and proper person to hold a practising certificate. Medical reports about Mr Murtough's mental health were among the documents which were before the Bar Association when it came to that conclusion.
Mr Murtough lodged three complaints of disability discrimination against the Bar Association with the Anti-Discrimination Board during the period from March to June 2007. The complaints alleged, among other things, that the Bar Association had discriminated against him on the ground of disability by refusing to grant him a practising certificate. Those complaints were referred to the Tribunal and dismissed in December 2007 for want of prosecution: Murtough v New South Wales Bar Association [2008] NSWADT 166.
On 24 June 2009, Mr Murtough applied for a practising certificate for the 2009/2010 year. In response to that application, the Bar Association required Mr Murtough to sit for and pass three Bar examinations. He sat for those examinations but did not pass. The reasons the Bar Association gave Mr Murtough for requiring him to sit for the examinations were:
(i) the length of your absence from practice at the Bar; and
(ii) your previous advice as to your very limited practice since 1998.
The Bar Association refused his application by Information Notice issued on 17 August 2009. On 30 September 2009, the Bar Association issued a further Information Notice in relation to his 2009 application for a practising certificate.
Mr Murtough applied again on 18 January 2010. He sat for various Bar examinations in February 2010 and February 2011. By an Information Notice dated 19 April 2011, the Bar Association refused to grant Mr Murtough a practising certificate because he had failed two of the Bar examinations.
Complaints in the Equal Opportunity Division
Section 73(1), (2) and (3) of the Administrative Decisions Tribunal Act 1997 ( ADT Act ) contain the informality, flexibility and fairness principles underpinning the Tribunal's jurisdiction:
(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
The Tribunal's jurisdiction to hear complaints under the AD Act is triggered by the referral of the complaint to the Tribunal by the President of the Anti-Discrimination Board. The referral of the complaint is taken to be an application for an original decision under the ADT Act : AD Act , s 95(3).
Because the complaint, as referred, is the application to the Tribunal, there is no legislative or policy requirement for pleadings in the Equal Opportunity Division of the Tribunal. The Tribunal's Equal Opportunity Division Guideline states that:
If parties are legally represented, and Points of Claim and Points of Defence would be useful because of the complexity of the matter, the Judicial Member may direct that those documents be filed.
Because the Equal Opportunity Division does not have any formal requirement for pleadings, there is similarly no formal provision for particulars to be requested or provided. Nevertheless, it is a fundamental requirement of all civil litigation, including proceedings in the Equal Opportunity Division, that a respondent is entitled to know the case it is required to meet: Rae v Commissioner of Police, New South Wales Police Force (No 2) [2010] NSWADT 36 at [111].
Filing of pleadings and subsequent correspondence
Both parties were legally represented in this case and, given the complexity of the complaint, directions were made for the filing and service of Points of Claim, Points of Defence and Points in Reply. Those documents were filed and served on 25 May 2011, 13 July 2011 and 8 August 2011 respectively.
Ms Sharp, the solicitor for the Bar Association, gave evidence that on 9 August 2011, after the pleadings and the applicant's evidence had been filed, she wrote to the solicitors for Mr Murtough. In that letter she stated that she is "yet to receive" the applicant's statement and the "medical evidence that your Counsel foreshadowed would be served on behalf of your client when this matter was listed for directions on 29 June 2011." Because that material had not been filed, Ms Sharp said that the Bar Association was not in a position to properly prepare its evidence.
Three days later, on 12 August 2011, Ms Sharp wrote again saying that she had not received a response to her letter and set out the matters that had been pleaded but which were, in her view, not supported by the evidence. She added that aspects of the complaint were misconceived and invited Mr Murtough's lawyers to withdraw the proceedings. If the proceedings were not withdrawn, Ms Sharp foreshadowed that the Bar Association would apply for the complaint to be summarily dismissed.
In their reply on 15 August 2011 the solicitors for Mr Murtough noted that the Bar Association had not sought particulars of the complaint and advised that they did not intend to withdraw the complaint.
Principles of summary dismissal
Section 110 of the AD Act states that:
The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b).
The Bar Association relied on three grounds for summary dismissal. The ground of failure to disclose a contravention of the Act and that the complaint is frivolous, vexatious, misconceived or lacking in substance are set out in s 92(1)(ii) and (i) respectively. The other ground, that Mr Murtough has failed to adequately or properly plead his case, comes under the heading "any other reason": AD Act , s 92(1)(b).
The principles relating to summary dismissal are similar to those applied by courts when exercising the discretionary power to summarily dismiss proceedings in civil litigation: Rees, Lindsay & Rice, Australian Anti-Discrimination Law, The Federation Press, 2008 at 662. The respondent has the onus of establishing that the proceedings should be dismissed.
A complaint should only be summarily dismissed with exceptional caution where circumstances clearly warrant such action: Dey v Victorian Railways Commissioners [1949] HCA 1 [32]-[34]; General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 at 129-30. In Rana v University of South Australia (2004) 136 FCR 344 Lander J expressed the view at 355 that summary dismissal "should only be adopted when it is clear, beyond any doubt that the applicant has not, and cannot, articulate in writing a reasonable cause of action."
Failure to disclose a contravention
The first ground on which the Bar Association submits that the complaint should be dismissed is that it fails to disclose a contravention of the AD Act . In such cases, the question is whether the complaint comes within a provision of the AD Act , rather than whether the evidence is sufficient to support the complaint: Langley v Niland [1981] 2 NSWLR 104. Examples include a complaint not covered by a ground of discrimination or that clearly falls within one of the exceptions to the AD Act .
In the Points of Claim the following conduct or treatment is identified as being the subject of the complaint:
(4) requiring the applicant to pass Bar examinations in Ethics, Practice and Procedure and Evidence as a condition of being granted a practising certificate for the year 2009/2010; and
(5) refusing the applicant's application for a practising certificate for the year 2009/2010; and
(6) requiring the applicant to pass the examinations in Practice and Procedure and Evidence in 2011 as a condition of being granted a practising certificate for the year 2010/2011; and
(7) refusing the applicant's application for a practising certificate for the year 2010/2011.
That treatment was said to be in breach of s 49J of the AD Act which states that:
(1) It is unlawful for an authority or body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of disability:
(a) by refusing or failing to confer, renew or extend the authorisation or qualification, or
(b) in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification, or
(c) by withdrawing the authorisation or qualification or varying the terms or conditions upon which it is held.
The Points of Claim do not specify whether the treatment was said to be a breach of s 49J(1)(a), (b) or (c). Ms Lowson, representing Mr Murtough, pointed out during the hearing that requiring Mr Murtough to pass the Bar examinations was a term on which the Bar Association was prepared to confer a practising certificate and thus an alleged breach of s 49J(1)(b). The two decisions to refuse the applications for a practising certificate were said to be in breach of s 49J(1)(a).
The crux of the Bar Associations submission on this point was that Mr Murtough was seeking, in effect, to reignite his claims relating to the Bar Association's decision to suspend his practising certificate in 2006 and to refuse his fresh applications in 2006 and 2007. As Mr Murtough has not applied to reinstate those proceedings, the Tribunal cannot entertain them. The Bar Association added that the events in 2006 and 2007 are outside the period of the current complaint which is 24 June 2009 to 19 April 2011.
Contrary to the Bar Association's assumption, Mr Murtough's current complaint does not allege a contravention of the AD Act in 2006 or 2007. The fact that complaints in relation to alleged contraventions during that period have been dismissed, does not prevent Mr Murtough from relying on the facts giving rise to those complaints to support his current complaint. The fact that Mr Murtough can only complain about treatment during the period of the complaint does not prevent him from referring to events prior to that period to support his complaint. Those events will be relevant if they are logically probative of an issue in dispute: Minister for Ethnic Affairs v Pochi (1980) 44 FLR 41 at 66-67 cited in Commissioner of Police, NSW Police Force v Butcher [2010] NSWADTAP 9 at [10].
The pleadings identify a ground of discrimination, an area of public life to which the ground relates (qualifying bodies) and the kind of discrimination (direct discrimination) which is alleged. There is no defence which, without any argument, would apply to the circumstances of this case. There is no other basis on which it can be said that the complaint fails to disclose a contravention of the AD Act .
Deficiency in the pleadings/failure to provide particulars
In courts a distinction is made between material facts, which must be pleaded, and particulars. However, in practice, defective pleadings are often cured by providing particulars: Bernard Cairns, Australian Civil Procedure, 8 th edition, Thomson Reuters p 221.
Deficiencies in pleadings are ordinarily the subject of a strike out application, rather than an application for summary dismissal of the entire cause of action. Professor Cairns summarised the position at p 233 as follows:
The court's power under the rules to strike out a pleading is distinguished from its power to give judgment if there is no cause of action or defence disclosed on the pleadings: Chapman v Australian Broadcasting Commission (2000) 77 SASR 181. If the court merely strikes out a pleading the proceedings continue in existence, although if the offending pleading is not rectified and re-served the innocent party might proceed in default of pleading.
In most cases, deficient pleadings can be rectified by amendment. However, in some circumstances, persistent failure by an applicant to provide particulars of a complaint may justify dismissing a complaint because procedural fairness has been denied. That was the case in Rae v Commissioner of Police, New South Wales Police Force (No 2) [2010] NSWADT 36 where the Tribunal dismissed part of a complaint because Mr Rae had failed to provide adequate particulars over a considerable period of time. The Tribunal concluded at [116], that that failure amounted to 'an inability or unwillingness to co-operate' with the Tribunal in 'having the matter ready for trial within an acceptable period'. That test was enunciated by Wilcox and Gummow JJ in Re Lenijamar Pty Ltd; Domenico Picone and Margaret Anne Picone v AGC (Advances) Ltd (1990) 27 FCR 388; [1990] FCA 520 at [36].
This case has a long procedural history. It was referred to the Tribunal by the President of the Anti-Discrimination Board on 6 November 2009. Various lawyers have represented Mr Murtough during that time. Although his current lawyers have been asked to provide further information about the complaint, I am not satisfied, at this stage, that Mr Murtough or his lawyers are unable or unwilling to co-operate with the Tribunal. I accept that Mr Murtough's pleadings are unclear in some respects and are not fully particularised. Mr Murtough's lawyers are entitled to a further opportunity to clarify the pleadings and provide further particulars. Before identifying the main matters that need to be clarified or particularised, I will address the final ground on which it was submitted that the complaint should be summarily dismissed.
Frivolous, vexatious, misconceived or lacking in substance
The third ground for dismissing the complaint was said to be that it was frivolous, vexatious, misconceived or lacking in substance. Adopting the meanings assigned to these words in the Victorian Court of Appeal decision of State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109 (per Ormiston JA) "misconceived" means a "misunderstanding of legal principle", and "lacking in substance" means "an untenable proposition of law or fact". When applying these principles, the applicant's evidence must be taken "at its highest".
The evidence in this case comprises six applications from Mr Murtough for practising certificates, four medical reports relating to him prepared during 2006 and 2007 and six Information Notices prepared under the Legal Profession Act 2004 refusing Mr Murtough a practising certificate between 21 December 2006 and 19 April 2011.
According to the Bar Association, Mr Murtough has failed to put on evidence to support the essential elements of his claim. Mr Murtough's response was that the matters referred to are either matters about which no evidence is needed or for which relevant evidence has been provided.
Putting to one side the Bar Association's proposed objection to the admissibility of the medical evidence, those reports provide some evidence of the nature and extent of Mr Murtough's disability during December 2006 and May 2007. The Information Notices set out the reasons for the Bar Association's decisions both in 2006 and 2007 and in 2009 and 2011 for refusing Mr Murtough's applications for practising certificates and for requiring him to sit and pass the Bar examinations. While Mr Murtough says that this is the entirety of his evidence in chief, he will be permitted to file further evidence in reply to the Bar Association's evidence. In addition, there may be evidence in answers to questions on cross-examination that may prove matters about which an applicant has no direct evidence: Margan v University of Technology, Sydney [2003] NSWADTAP 65 at [11].
I do not regard the evidence as being so deficient as to justify summary dismissal on the ground that the complaint lacks substance. I will consider the question of whether the complaint contains a "misunderstanding of legal principle" or is based on "an untenable proposition of law or fact" when considering the Bar Association's alternative application that Mr Murtough amend his Points of Claim, provide further particulars and file further evidence.
Direction to amend complaint/provide particulars
Disability
The disability which was said to be the ground for the discrimination was identified in the following terms in the Points of Claim:
At all material times the applicant has suffered from mental illness, namely a personality disorder of the obsessive-compulsive type and has, from time to time, suffered from acute depressive illness.
In the Points in Reply, the relevant times were said to be "the times relevant to the decisions by the Respondent in December 2006 and July 2007 to refuse to renew the applicant's practising certificate." The relevant decisions were made on 21 December 2006, 4 July 2007 and 13 July 2007. What is not clear is whether Mr Murtough is pleading that he had both a personality disorder and an acute depressive illness on all of these dates. That issue should be clarified.
Mr Murtough also referred in the Points in Reply to s 4(a) to (e) of the AD Act . Disability is defined in that provision to mean:
(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or
(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or
(c) the malfunction, malformation or disfigurement of a part of a person's body, or
(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
Mr Murtough does not point to s 4(e) as being the relevant sub-section. If that is the case, then it would assist the Bar Association to prepare its case if that was made known.
To amount to a contravention of the AD Act , the disability which is the ground for the alleged treatment can be a current, past, imputed or future disability. Section 49A makes that clear:
A reference in this Part to a person's disability is a reference to a disability:
(a) that a person has, or
(b) that a person is thought to have (whether or not the person in fact has the disability), or
(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or
(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).
Mr Murtough did not specify in the Points of Claim or the Points in Reply whether the disability which was the alleged ground for the treatment was a current, past, imputed or future disability. In the submissions in relation to this dismissal application by Mr Murtough's lawyer, Ms Lowson, it was said that the filed documents disclose that he had, or was thought by the respondent to have, a disability. During the hearing Ms Lowson indicated that the ground for the alleged treatment in 2009 and 2011 was a disability that Mr Murtough had in the past (during 2006 and 2007) and/or a disability that the Bar Association thought her client had during that period.
When the complaint is understood as relating to a past and/or presumed past disability, the relevance of medical reports providing opinions as to the nature and extent of Mr Murtough's mental illness during that period, is apparent.
Direct discrimination on ground of disability and/or characteristics
The alleged treatment was said to constitute "direct" discrimination as defined in s 49B(1)(a):
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or
Alternatively, the ground of discrimination was said to be a characteristic/s appertaining generally to people who have a disability similar to Mr Murtough's, or generally imputed to such people. Section 49B(2) states that:
(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.
This ground of discrimination is sometimes referred to as the "characteristics extension": Rees, Lindsay & Rice, Australian Anti-Discrimination Law, The Federation Press, 2008 at 4.2.38.
The relevant characteristics were said to be:
(1) impaired mental capacity to organise and regulate his work as a barrister; or
(2) absences from practise as a barrister caused by mental illness and the need to recover from the effects of such mental illness.
The characteristics should not be defined in a way which includes reference to the relevant mental illness or mental incapacity. It is not relevant whether the characteristic of being temporarily absent from practise is caused by mental illness. Rather the question is whether it is a characteristic of people with mental illness. If the characteristics are as I understand them, they would, in my opinion, have been better expressed as "difficulty organising and regulating work as a barrister" and "requiring temporary absences from practise as a barrister".
This part of the complaint is pleaded in the following way:
27. Alternatively, the decisions of the Council of the respondent to refuse the grant of practising certificates was on the grounds that the applicant had an impaired mental capacity to organise and regulate his work as a barrister (the lack of organised work characteristic).
28. The organised work characteristic attributed to the applicant by the Council of the respondent, referred to in the preceding paragraph, is a characteristic that appertains generally to persons who have a mental disability similar to the applicants.
29. And/or now alternatively to the preceding paragraph, the characteristic attributed to the applicant by the Council of the respondent is a characteristic imputed to persons who have a disability similar to that of the applicant.
30 Further and alternatively, absences from practise as a barrister caused by mental illness and the need to recover from the effects of such mental illness, a characteristic that appertains generally to people with mental illnesses of the sort from which the applicant suffered, and are a characteristic that appertains generally to persons with disabilities substantially the same as the applicant's disability (the characteristic of temporary absences from practise).
I understand from these paragraphs that the so-called "lack of organised work characteristic" is said to be a characteristic that appertains generally to persons who had Mr Murtough's disability and/or a characteristic that is generally imputed to such persons. The so-called "temporary absences from practise" characteristic is only said to be a characteristic that appertains generally to such persons. The facts in relation to each of these characteristics needs to be particularised. For example, during what periods was Mr Murtough temporarily absent from practise and for what reason.
If no evidence is to be adduced to support the contention that the relevant characteristics appertain generally to people who have Mr Murtough's disability or are imputed to such people, then I assume that that is a matter about which Mr Murtough will ask the Tribunal to take judicial notice.
I also assume that because Mr Murtough's claim is based, in part, on a past disability, the characteristics extension grounds are that when making the decisions in 2009 and 2011, the Bar Association discriminated against him on the ground that, at the relevant times in 2006 and 2007, he had difficulty organising and regulating work as a barrister and/or had been temporarily absent from practise as a barrister. If this is not correct, and the characteristics extension grounds relate to characteristics associated with a current disability, that should be made clear.
Differential treatment
In order to substantiate a claim of direct discrimination, either on the ground of disability or a characteristic of disability, Mr Murtough needs to prove that there was:
(3) "differential treatment' (that the treatment that the applicant was afforded was less favourable than the treatment that was or would have been afforded to a person without his disability in the same or similar circumstances); and
(4) "causation" (that at least one of the reasons for the treatment was the disability or a characteristic of the disability.)
There is no reference to the "differential treatment" requirement in the Points of Claim. In the Points in Reply, Mr Murtough says:
. . the person without a disability relevant to these proceedings is a barrister without a disability whose practising certificate would have been renewed in 2006 and 2007, and accordingly who would not have been "absent from practice" at the time of applying to renew their practising certificate in 2009 and 2011.
It is noteworthy that Mr Murtough has excluded one of the alleged characteristics, or manifestations, of his disability (temporary absence from practise) from the relevant circumstances when making the comparison. In other words, rather than proposing a hypothetical comparator as a person who has had the same absences from practise as Mr Murtough, the comparator is said to be a person who has not had those absences.
In relation to complaints of direct disability discrimination, the way in which a disability manifests itself (through disorganised behaviour or temporary absences, for example) has been regarded as part of the circumstances for the purpose of the differential treatment test: Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92. On the other hand, where the characteristics extension is pleaded, those manifestations may be considered to be part of the disability rather than part of the circumstances that exist for the purpose of making the comparison: Rees, Lindsay & Rice, Australian Anti-Discrimination Law, The Federation Press, 2008 at 5.3.4.15. Mr Murtough should clarify the comparator and the circumstances both in relation to the alleged discrimination on the ground of past disability and the alleged discrimination on the ground of the characteristics extension.
Causation
In relation to causation, the Points of Claim state that:
23. The Council of the respondent required the applicant to pass Bar examinations in Ethics, Practice and Procedure, and Evidence, in 2009 for the reason that there had been a substantial length of absence by the applicant from practise at the Bar by September 2009 and limited practice since 1998.
24. The principal reason that there had been a substantial absence from practise at the Bar by the applicant prior to September 2009 was solely, or substantially, because of the suspension of his practising certificate by the Council of the respondent . . . and the further refusals of the Council of the respondent to grant the applicant a practising certificate . . .
25. Each of the refusals of the Council of the respondent to grant the applicant a practising certificate, referred to in the preceding paragraph, were decisions made on the grounds of the applicant's mental disability. . .
Similar facts were pleaded in relation to the 2011 refusals.
In relation to paragraph 25 of the Points of Claim, the Bar Association submitted that Mr Murtough had not pleaded any material facts in support of its claim that the "refusals" of the Bar Association to grant a practising certificate were on the ground of Mr Murtough's "mental disability". The Bar Association also asks how the decisions to refuse practising certificates were on the ground of the alleged characteristics.
Mr Murtough's response is that he relies on the Information Notices dated 21 December 2006, 4 July 2007 and 13 July 2007. It would assist the Bar Association to know the case it has to meet, if the relevant parts of those Notices could be identified for both the past and presumed past disability grounds and the characteristics extension grounds, if relevant.
Further, the Bar Association submitted that Mr Murtough has not pleaded the facts which demonstrate a causal connection between the alleged treatment in 2009 and 2011 and the decisions in 2006 and 2007. According to the Bar Association, one reason that that connection cannot be made is that Mr Murtough did not apply for a practising certificate for the 2008/2009 year. Consequently, at least part of his absence from practice is attributable to his own failure to apply for a practising certificate. Mr Murtough contends that these are matters for evidence, not matters which would justify an amendment to the Points of Claim.
While I agree that this is a matter for evidence, Mr Murtough needs to consider whether he has filed the evidence to support the fact he asserts in paragraph 24 of the Points of Claim.
Conclusion
Mr Murtough has pleaded his case of disability discrimination in a manner which raises several legal and factual issues. Because the complaint alleges discrimination on the ground of a past and/or presumed past disability as well as on the basis of two characteristics of Mr Murtough's disability, those issues are complex. While some clarification and further particulars are needed, the complaint is not so flawed as to justify dismissal on the ground that it is misconceived or lacking in substance.
Mr Murtough should either amend his Points of Claim or provide further particulars of the complaint. Further directions will be made at a case conference.
Direction to file further evidence
As for the filing of further evidence, Mr Murtough submitted that the Tribunal has no power to make such a direction. The Bar Association pointed to s 73(5)(c) of the ADT Act which states that:
(5) The Tribunal:
(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument
This provision does not give the Tribunal power to direct a party to file additional evidence or evidence on a particular subject matter. The discretion merely relates to whether evidence or submissions are to be presented in writing or orally. The onus is on the applicant to prove his or her case by means of the written or oral evidence adduced at hearing. The Tribunal can indicate that it would be assisted by certain kinds of evidence and can summons evidence of its own motion: ADT Act, s 84(1)(b). However parties, particularly if they are represented by lawyers, are responsible for filing and serving the evidence on which they intend to rely. I make no direction for the filing of further evidence, but note that Mr Murtough may seek directions to file evidence in reply when the Bar Association has filed its evidence.
Costs
The Bar Association applied for costs. The general rule is that each party pays his or her own costs. However, costs may be ordered if it is "fair" to do so having regard to various matters listed in s 88(1A) of the ADT Act : AD Act , s 110, ADT Act , s 88. The Bar Association submitted that Mr Murtough had disregarded the Tribunal's direction to file evidence in support of his complaint and that no statement of Mr Murtough had been filed. It was submitted that the documents that have been filed do not speak for themselves and that Mr Murtough must personally give evidence of the treatment he considers to be in contravention of the AD Act .
Section 88(1A)(a)(i) states that one factor which may be taken into account in deciding whether it is fair to award costs is whether a party has conducted the proceedings in a way which unnecessarily disadvantaged the other party such as failing to comply with an order or direction of the Tribunal. Mr Murtough did not fail to comply with the latest direction of the Tribunal to file evidence in support of his complaint. The fact that the Bar Association does not consider that that evidence adequately supports the complaint does not make it fair to award costs against Mr Murtough.
In addition the Bar Association says that it has repeatedly requested Mr Murtough to address the issues but he has failed to do so. The evidence relating to the Bar Association's request for Mr Murtough to clarify the Points of Claim and file further evidence are set out above at [19] to [21].
As I have said, this case has a long procedural history. Mr Murtough's current lawyers have been asked to provide further information about the complaint and have failed to respond adequately to that request. Nevertheless, I am not satisfied, at this stage, that it is fair to order costs against him.
Further application
If the proceedings were not summarily dismissed, Mr Murtough applied for there to be a hearing on liability and, if necessary, a separate hearing in relation to the appropriate remedy. An affidavit of Mr Baker, Mr Murtough's solicitor, in support of that application was filed on 23 September 2011. The Bar Association opposes the application.
Further directions in relation to the application for a split hearing will be made at the case conference.
Orders
(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.
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
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Decision last updated: 21 October 2011
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