Murtough v NSW Bar Association (No 2)
[2012] NSWADT 23
•14 February 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Murtough v NSW Bar Association (No 2) [2012] NSWADT 23 Hearing dates: 31 January 2012 Decision date: 14 February 2012 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: 1. The questions of liability, and of remedies apart from damages, are to be determined separately and prior to the question of damages.
2. Matter listed for further case conference on 5 March 2012 at 3 pm.
Catchwords: Application for hearing on questions of liability and damages to be separate -considerations for and against separate hearings Legislation Cited: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997
Legal Profession Act 2004Cases Cited: Abb v Freight Rail [1999] NSWSC 1037
McKenzie v Downing [2008] NSWSC 69
Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215Category: Interlocutory applications Parties: Christopher Murtough (Applicant)
New South Wales Bar Association (Respondent)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
The applicant, a former barrister, has complained that the respondent, (the NSW Bar Association) has discriminated against him on the ground of disability: Anti-Discrimination Act 1977, s 49J. This decision responds to an application for an initial hearing on liability to be followed by a separate hearing on damages if the complaint is wholly or partly substantiated. The applicant is content for the primary remedy he seeks (an order granting him a conditional practising certificate as long as he is otherwise eligible for the grant of such certificate) to be determined at the liability hearing. However, because of the time and cost involved in preparing evidence to prove damages, he is seeking a separate hearing on that issue. The respondent opposes the application.
Legal principles
The Tribunal may, subject to any legislation to the contrary, determine its own procedures: Administrative Decisions Tribunal Ac 1997 (ADT Act) , s 73(1). The power to determine its own procedure includes a power to direct that any question be decided separately from any other question. Courts have an express authority to make such orders by virtue of r 28.2 of the Uniform Civil Procedure Rules 2005:
The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.
While this rule does not apply to the Tribunal, commentary on its scope is relevant. The authors of Ritchie's "Supreme Court Procedure", at paragraph 28.4.35, state (omitting most citations) that:
Despite cautionary observations to the contrary (for example Abb Engineering Construction Pty Ltd v Freight Rail Corp [1999] NSWSC 1037, at [4]) it is a relatively frequent occurrence for questions of liability and damages to be tried separately. This will be appropriate in various instances. For example, a separate determination may be ordered where there is a clear line of demarcation between liability and damages issues. If the assessment of damages is particularly complex, separate determination may be appropriate.
A separate hearing was granted in McKenzie v Downing [2008] NSWSC 69, a negligence case arising from a motor vehicle accident. At [25], Harrison ASJ noted that the plaintiff was unable to fund the litigation but that his solicitors were prepared to do so if liability were determined before quantum. His Honour concluded at [30] that the plaintiff would be "shut out" of litigation if he had to pay for the preparation of his whole case.
When interpreting the former equivalent provision of r 28.2 in Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7] Einstein J summarised the relevant principles. Taking into account the commentary and case law in this area, the following principles emerge when considering the question raised in these proceedings:
(1) in determining whether to order separate hearings, the Tribunal "is to act as quickly as is practicable": ADT Act , s 73(5)(a);
(2) ordinarily, all issues in a proceeding should be disposed of at the same time;
(3) it is a relatively frequent occurrence for questions of liability and damages to be determined separately;
(4) it may be desirable to have a separate hearing on liability where:
(a) there is a strong prospect that the parties will be able to resolve the dispute themselves after such a hearing;
(b) it is unlikely that the losing party will appeal the separate question;
(c) there is a clear demarcation between liability and damages issues in the case, including issues going to the credit of witnesses;
(d) the applicant may otherwise be "shut out" of litigation.
Background
History of proceedings
On 3 December 2007, the Tribunal dismissed three complaints of disability discrimination made by the applicant in relation to certain matters including the respondent's decisions to suspend his practising certificate in 2006 and to refuse to grant him a practising certificate in 2006 and 2007. The complaints were dismissed because the applicant had not done enough to prepare his case for hearing ("want of prosecution").
The applicant made a second complaint of disability discrimination which was referred to the Tribunal by the President of the Anti-Discrimination Board on 1 September 2009. That complaint is the subject of these proceedings. Two years and three months have passed since the referral. During that time Mr Murtough has applied for legal aid and has changed solicitors. His current solicitor, Peter Baker, first appeared on his behalf on 1 March 2011. Ms Lowson has been instructed as counsel. In December 2011, the applicant's grant of legal aid was withdrawn but both Mr Baker and Ms Lowson are continuing to act pro bono for the time being.
The applicant filed the evidence on which he intends to rely in relation to liability, but not to damages, on 8 August 2011. Amended Points of Claim were filed on 1 December 2011, following the refusal of the respondent's application for summary dismissal: Murtough v NSW Bar Association [2011] NSWADT 243 (21 October 2011). The respondent has filed an Amended Defence. Its evidence is due to be filed on 28 February 2012.
History of Applicant's practice since 2006
The respondent suspended the applicant's practising certificate on 23 February 2006. The applicant applied for a practising certificate on 26 October 2006 for the 2006/2007 year. Practising certificates are regulated by the Legal Profession Act 2004 and are current for 12 months corresponding with the financial year. The application was refused on 21 December 2006. The applicant applied again on 2 April 2007. That application was refused on 4 July 2007. The applicant applied for a practising certificate for the 2007/2008 year on 2 July 2007. That application was refused on 13 July 2007.
The reason given in each of the Information Notices for refusing the applicant's application was that he was not a fit and proper person to hold a practising certificate. Medical reports about the applicant's mental health were among the documents which were before the respondent when it came to that conclusion.
On 24 June 2009, the applicant applied for a practising certificate for the 2009/2010 year. In response to that application, the respondent required him to sit for three Bar examinations. In its Amended Points of Defence the respondent states at 17(c), that:
Pursuant to the policy of the Bar Council, the Bar Council has the discretion to require any applicant returning to the bar, where a period of more than two years has elapsed since the last practising certificate, to require the applicant to undertake the Bar Exams pursuant to the Bar Council's resolution dated 15 June 2006.
The Amended Points of Defence go on to state that the requirement to sit the Bar examinations is in addition to the requirement that the respondent be satisfied that an applicant is a fit and proper person to hold a practising certificate.
The reasons the respondent gave the applicant 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 applicant sat for those examinations but did not pass. The respondent refused his application by Information Notice issued on 17 August 2009. On 30 September 2009, the respondent issued a further Information Notice in relation to his 2009 application for a practising certificate.
The applicant 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 respondent refused to grant the applicant a practising certificate because he had failed two of the Bar examinations.
In July 2011 the applicant applied to sit for the Evidence and Practice and Procedure examinations by way of an oral, rather than a written, examination. The respondent refused to allow the applicant to sit for the exams in that way. That issue is the subject of a mediation scheduled for 1 February 2012.
Alleged conduct
Based on the Amended Points of Claim, my understanding of the conduct which the applicant alleges is in breach of the AD Act , is as follows:
(1) in response to the applicant's application for a practising certificate made on 24 June 2009, the respondent required the applicant to sit for and pass three Bar examinations as one of the a pre-conditions to being granted a practising certificate;
(2) the respondent refused the applicant's application for a practising certificate on 13 August 2009;
(3) in response to the applicant's application for a practising certificate for the 2011/2012 year, the respondent required the applicant to sit for and pass Bar examinations as one of the pre-conditions to being granted a practising certificate;
(4) the respondent refused the applicant's application for a practising certificate on 19 April 2011;
(5) the respondent refused the applicant's application made in July 2011 to sit the Evidence and Practice and Procedure examinations by way of an oral examination rather than a written examination.
The first four allegations are said to be in breach of the AD Act on two alternative bases. The first basis is that the conduct was on the ground of a disability that the applicant had, or was perceived by the respondent to have had, in the past (that is when the respondent refused the applications on 21/12/06, 4/7/07 and 13/7/07.) The applicant alleges that the previous decisions to refuse his applications for practising certificates were made on the ground of his mental illness. As a result of those decisions, the applicant says that he did not practise for a period of time, leading to the respondent exercising its discretion to impose a requirement to re-sit and pass three Bar examinations. The applicant seeks to draw a causal connection between the 2006 and 2007 decisions (which he says were on the ground of 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 did not pass all the exams.
The second basis on which it was said that the conduct breached the AD Act was that it was done on the ground of a characteristic that appertains generally to persons who have the applicant's disability or a characteristic that is generally imputed to persons who have that disability: AD Act , s 49B(2). That characteristic was said to be that the applicant was impaired in his ability to organise and regulate his work as a barrister.
The fifth allegation, which relates only to the refusal to allow the applicant to sit for oral examinations, was that the respondent was discriminating "indirectly" against the applicant on the ground of an existing disability: s 49B(b).
Remedies sought
The applicant seeks the following remedies:
1) In regard to each of the complaints found by the tribunal to be substantiated, damages.
2) An order requiring the Bar Council of the respondent to grant to the applicant forthwith a conditional practising certificate for the practice year relevant at the date of the making of such order, and on condition that the applicant is otherwise eligible for the grant of such certificate.
3) Further and/or alternatively an order restraining the council of the respondent from requiring the applicant to sit any further law exams as a condition of a grant to him of a conditional practising certificate;
4) Strictly in the alternative, a finding that the respondent has discriminated against the applicant by requiring him to sit and pass Bar examinations in writing, and the direction that the respondent provide the applicant the opportunity to sit the evidence examination on a vice voce basis.
Grounds for application to have separate hearings
The applicant's solicitor, Mr Baker, filed an affidavit dated 23 September 2011 in support of the application for separate hearings. At para 3, Mr Baker stated, in relation to the assessment of the quantum of damages, that:
I have formed the view that this is not straightforward for a number of reasons including;
(a) there were periods after the discriminatory conduct occurred when the applicant suffered significant ill-health that may have affected his capacity to generate income;
(b) it will probably be necessary to engage expert medical opinion to ascertain to what extent the respondents conduct may have contributed to that ill-health;
(c) taking instructions about the nature and effects of the periods of ill-health between 2006 and 2011 in itself will be time-consuming;
(d) the nature of the applicant's practice prior to the alleged discriminatory conduct was not straightforward, and will probably require the retention of expert actuarial advice in order to make a reasonable estimate damages.
In oral submissions Ms Lowson, counsel for the applicant, submitted that the issue of liability, at least in relation to the first four allegations, is relatively straightforward from a factual point of view. The applicant's evidence on liability comprises various applications by the applicant to renew his practising certificate during the period 26 October 2006 to 16 February 2011, various Information Notices refusing the applicant's applications during the period from 21 December 2006 to 19 April 2011 and medical reports from three doctors, Dr Peter Ross, dated 13 December 2006 and 21 May 2007, Dr Jonathan Phillips, dated 18 December 2006 and Dr Michael Diamond dated 30 May 2007. Ms Lowson does not intend to call any witnesses and says that the issue of liability could be determined 'on the papers': ADT Act , s 76.
In order to substantiate parts of his complaint, one matter that the applicant will have to prove is that he had a disability and/or the respondent thought he had a disability in December 2006 and July 2007. The Amended Points of Claim state, at paragraph 3, that:
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. The material times during which the applicant suffered from a disability are the times relevant to the decisions by the respondent in December 2006 and July 20070 to refuse to renew the applicants practising certificate.
Ms Lowson relies on the medical reports referred to in the Information Notices as evidence of the applicant's past (or imputed past) disability. She says that the nature of the applicant's disability is contained in the medical reports which the respondent relied on when deciding not to grant him a practising certificate in 2006 and 2007.
The respondent says that the applicant has not specifically pleaded the disability on which he relies and denies that the applicant has suffered from mental illness as pleaded. Ms Ronalds, representing the respondent, foreshadowed that she intends to object to the medical reports being admitted into evidence. If they were admitted, she would require the doctors for cross-examination if their evidence was being relied on to prove the nature and extent of the applicant's disability.
Ms Lowson said that cross-examination of the doctors would not assist the Tribunal to determine that issue because the respondent relied on their diagnosis of the applicant when deciding to refuse to grant him a practising certificate. Without determining this issue, it is a distinct possibility, given the respondent's denial of the applicant's disability as pleaded, that the doctors will have to give evidence at any liability hearing.
Ms Lowson conceded that in order to prove that the applicant suffered damage as a result of the conduct of the respondent, it would be necessary to adduce evidence of his health and his income earning capacity from 2006 onwards. That is clearly a matter about which his treating doctors will have to give evidence.
The applicant anticipated that it might need to adduce evidence from an actuary in relation to the extent of any financial loss after the allegedly discriminatory conduct occurred. Ms Ronalds agreed that a separate hearing to consider that evidence would be appropriate because it is a discrete issue. She says that unnecessary expense would be avoided if that matter could be postponed until a finding on liability is made.
Ms Lowson brought the Tribunal's attention to the decision in Abb Engineering Construction Pty Ltd v Freight Rail Corp [1999] NSWSC 1037 but sought to distinguish it. She said that it involved these proceedings do not involve a commercial dispute, that damages is only one part of the remedy sought by the applicant, that the witnesses on liability and damages will not overlap and that while the litigation may be prolonged if either party appeals the liability finding, the applicant no longer has the benefit of a grant of legal aid.
Consideration
Because the Tribunal must act as quickly as is practicable, ordinarily all issues in a proceeding should be disposed of at the same time. The applicant's principal submission against following the ordinary practice, is that he would be effectively deprived of an opportunity to claim damages if the questions of liability and damages were not heard separately. Given that the applicant's representatives are acting pro bono for the time being, it is likely that the applicant will be unable to pursue a remedy for damages if the application is not granted.
I accept that that is the situation. However, the primary remedy the applicant is seeking is an order in the nature of a mandatory injunction, granting him a conditional practising as long as he is eligible for the grant of such certificate: AD Act , s 108(2)(c). According to Ms Lowson, that remedy is not dependent on the applicant adducing evidence of his health or income since 2006 and could be determined at the liability hearing, if the complaint is substantiated.
There is no persuasive practical reason against separating the hearings. While it is possible that expert medical witnesses will need to give evidence both in relation to liability and damages, it is unlikely that their credibility will be impugned in a way which would require a differently constituted tribunal to hear the damages question. I do not accept Ms Ronalds' further point that a separate hearing is not appropriate because the history of the applicant's capacity to practise from 2006 is essential to prove that the respondent has breached the AD Act . Ms Lowson says that she does not intend to adduce evidence of that history on the issue of liability. The applicant is free to present his case as he sees fit.
On the other hand, a separate hearing will not necessarily lead to the resolution of the entire complaint following a decision on that issue. If the complaint is not substantiated, that is likely to be the end of the matter. However, if the complaint is substantiated, it is likely that the respondent will appeal, rather than come to an agreement with the applicant on the quantum of damages. A hearing on damages is likely to be adjourned until the appeal is determined. Those considerations militate against having a separate damages hearing.
The considerations for and against having a separate hearing on damages are finely balanced. While a decision to have separate hearings could lead to further delays and costs, it could also lead to a speedy resolution of the complaint if it is not substantiated. There is no practical reason for refusing the application. Taking these considerations into account, as well as the fact that the applicant will be "shut out" of any claim for damages if the application is refused, I have decided to grant the application.
Order
The questions of liability, and of remedies apart from damages, are to be determined separately and prior to the question of damages.
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Decision last updated: 14 February 2012
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