Murtough v NSW Bar Association (No 2)

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 2004

Cases Cited:

Abb v Freight Rail [1999] NSWSC 1037
McKenzie v Downing [2008] NSWSC 69
Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215

Category:

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

1. 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

1. 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.

1. 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,…