Murtough v NSW Bar Association (No. 3)
[2012] NSWADT 234
•08 November 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Murtough v NSW Bar Association (No. 3) [2012] NSWADT 234 Hearing dates: 28, 29 and 30 May 2012 Decision date: 08 November 2012 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President
N Hiffernan, Non-Judicial Member
M Nasir, Non-Judicial MemberDecision: The complaint is not substantiated
Catchwords: EQUAL OPPORTUNITY - past disability discrimination - qualifying body - causation Legislation Cited: Anti-Discrimination Act 1977
Legal Profession Act 2004Cases Cited: Commissioner of Corrective Services -v- Aldridge [2000] NSWADTAP 5
Commissioner of Police, NSW Police Force v Butcher [2011] NSWADTAP 9
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Murtough v New South Wales Bar Association 3 December 2007, unreported
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92Texts Cited: Rees, Lindsay and Rice, Australian Anti-Discrimination Law, The Federation Press, 2008 Category: Principal judgment Parties: Christopher Murtough (Applicant)
NSW Bar Association (Respondent)Representation: Counsel
P Lowson (Applicant)
C Ronalds SC (Respondent)
E Raper (Respondent)
Peter Baker, Solicitor (Applicant)
Marque Lawyers (Respondent)
File Number(s): 091125
REasons for decision
Introduction
The issue in this case is whether the Bar Association's refusals to grant Mr Murtough an annual certificate constitutes discrimination on the ground of a past disability in breach of the Anti-Discrimination Act 1977 (AD Act). Mr Murtough says that he was suffering from depression and a personality disorder in 2006 and 2007 when the Bar Association suspended his practising certificate and refused further applications. Relying on a chain of events beginning at that time, he says that the real reason for refusing to grant him practising certificates in 2009 and 2011 was his past disability. The Bar Association says that the real reason for the refusals in 2009 and 2011 was that Mr Murtough did not pass all the bar examinations that he was required to sit after having been absent from the bar for more than two years. We agree with the Bar Association that there has been no breach of the AD Act.
Background
In these reasons, for simplicity, we have not distinguished between the Bar Association and the Council of the Bar Association.
A person wishing to practice as a barrister must apply to the Bar Association for a practising certificate. If granted, a practising certificate is current from 1 July to 30 June the following year. One basis on which the Bar Association can refuse to grant a practising certificate is if the applicant is not a "fit and proper person" to hold the certificate: Legal Profession Act 2004 (LPA) s 48(3). In considering whether a person is "fit and proper" the Bar Association may take into account "suitability matters" and any other matter the Bar Association thinks appropriate: LPA, s 42(2). A "suitability matter" includes:
Whether the person currently is unable to carry out the inherent requirements of practice as an Australian legal practitioner and that inability arises from infirmity, injury or mental or physical illness, impairment or disability: LPA, s 9(1)(m).
The Bar Association may also impose "reasonable and relevant" conditions on any practising certificate: LPA, s 50. If the Bar Association refuses to grant a practising certificate, it must give the applicant an Information Notice setting out the decision and the reasons: LPA, s 48(12).
Since 15 June 2006, the Bar Association has had a policy under which it may require a barrister, who has not renewed his or her practising certificate for two years, to re-sit one or more of the bar exams (the Policy). New barristers must also pass the bar exams before commencing practice.
In 1995 Mr Murtough sat for and passed the three bar exams. From 1995 to 2001 he was a reader at the bar and was subject to the restrictions that that status carries. He did not apply to renew his practising certificate for the 2001/2002 year but applied for and was issued with a practising certificate for the 2002/2003 year. He held an unrestricted practising certificate more or less continuously for about 3½ years until February 2006.
On 24 February 2006, the Bar Association suspended Mr Murtough's practising certificate for 5 weeks on "public interest" grounds: LPA, s 78(1)(c). The reasons given were that in three proceedings in which Mr Murtough was involved as a party or a lawyer, he was considered not competent to give instructions, had been advised by doctors to withdraw from legal work or had been told by the judge that any further application for an adjournment must be supported by medical evidence.
The Bar Association extended the suspension to the end of June 2006 on the ground that Mr Murtough was not a "fit and proper person" to hold a practising certificate because he was unable to carry out the inherent requirements of practice: LPA, s 60. That inability was said to arise from "mental illness, impairment or disability" based on various medical reports.
Mr Murtough re-applied for a practising certificate for the 2006/2007 year and twice for the 2007/2008 year. Each of those three applications was refused. Mr Murtough alleges that those refusals were on the ground of his disability at the time and that that reason flowed through to the later refusals in 2009 and 2011.
The basis for the first of the three refusals is set out in an Information Notice dated 21 December 2006. That Notice recited the opinion of Mr Murtough's treating psychiatrist, Dr Ross, that although there was no evidence of substantive mental illness or cognitive impairment that would preclude Mr Murtough from practising, he has "recurrent depression with associated anxiety" and "obsessive compulsive personality traits".
The Bar Association did not accept the psychiatrist's proposal that certain conditions including supervision be imposed on Mr Murtough's registration. The Bar Association concluded that Mr Murtough was not a fit and proper person to be granted a practising certificate for six reasons, five of which related to his health. The first reason was that the need for such conditions demonstrated that he could not carry out the inherent requirements of practice as a barrister and/or that he was not a fit and proper person to hold a practising certificate. The second reason was that the proposed conditions would be stressful to Mr Murtough and unworkable for him and his family. The remaining reasons included the Bar Association's concern for Mr Murtough's "fragile mental state" and the opinion of another psychiatrist, Dr Phillips, that Mr Murtough's insight in relation to his responsibility for his own problems was limited.
By an Information Notice on 4 July 2007 the Bar Association refused Mr Murtough's application on the ground that he was not a "fit and proper person" to hold a practising certificate. When making that decision the Bar Association had before it a report from a consultant psychiatrist, Dr Diamond, as well as a report from Mr Murtough's treating psychiatrist, Dr Ross. Dr Ross expressed the view that Mr Murtough was suffering from recurrent major depressive episodes, harmful alcohol use, obsessive-compulsive personality traits and chronic lymphocytic leukaemia. Again, the Bar Association considered that the conditions that Dr Ross and Dr Diamond suggested be imposed on his practising certificate, themselves indicated that he was unable to carry out the inherent requirements of practice as a barrister. The Bar Association also took into account Mr Murtough's behaviour in writing repetitious and voluminous correspondence as well as his poor history of conducting litigation on his own behalf.
Mr Murtough's third application was rejected for essentially the same reasons. He did not apply for a practising certificate for the following year - 2008/2009.
On 5 May 2009 the Bar Association wrote to Mr Murtough in relation to a "purported" application that he had made in February. The Bar Association advised him that, in relation to any future applications, he was required to sit for and pass the three bar exams. This was in accordance with the Bar Association's Policy, to which we have referred, that:
Where the applicant is returning to the Bar, and more than two years have elapsed since the last practising certificate, the applicant may be required to undertake one or more of the bar exams and all or part of the reading programme. This shall be determined on a case-by-case basis by the Executive Director, consulting as appropriate with the Director, Professional Development and members of the Bar Council Executive.
The reasons the Bar Association gave for the application of the Policy to Mr Murtough were:
(a) the length of your absence from practice at the bar; and
(b) your previous advice as to your very limited practice since 1998.
By that time, Mr Murtough had been absent from practice at the bar for over 3 years. During the last of those years, 2008/2009, he had not applied for a practising certificate.
In July 2009, Mr Murtough sat for and failed the three bar exams. The Bar Association issued an Information Notice on 17 August 2009 giving the following reason for its decision to refuse to grant him a practising certificate:
The reason for the Bar Council's decision is that you have failed the bar examinations in Practice and Procedure, Evidence and Ethics which you sat on 20, 22 and 24 July 2009, respectively, being examinations which the Bar Council required you to pass.
This is the first alleged act of discrimination.
Mr Murtough applied again on 28 August 2009. Again, the Bar Association refused his application giving the same reason for its decision. This is the second alleged act of discrimination.
Mr Murtough sat the Bar examinations again in February 2011 but did not pass all the subjects. In relation to Mr Murtough's application dated 16 February 2011, the Bar Association issued an Information Notice on 19 April 2011 giving the following reason for its decision to refuse to grant him a practising certificate:
The reason for the Bar Council's decision is that you have not successfully completed the Bar Association Examinations in Practice and Procedure and Aspects of Evidence which you sat on 14 and 16 February 2011 respectively, being examinations which the Bar Council requires you to pass as a prerequisite to you undertaking a reading program.
This is the third alleged act of discrimination.
The issue is whether the Bar Association's three refusals in 2009 and 2011 constitute discrimination on the ground of disability in contravention of the AD Act.
The earlier refusal of Mr Murtough's applications in 2006 and 2007 did not take place during the period of the complaint as referred by the President of the Anti-Discrimination Board or as agreed between the parties. The Tribunal has no jurisdiction to determine whether that conduct constitutes a breach of the AD Act: AD Act, s 95(3).
The Bar Association submitted that Mr Murtough could not rely on any factual matters relating its decisions in 2006 and 2007 in support of his complaint about later refusals. The basis for that submission was that the earlier refusals were the subject of proceedings in the Tribunal which were dismissed for want of prosecution: Murtough v New South Wales Bar Association 3 December 2007, unreported. It was not said that Mr Murtough's current complaint should be dismissed because of the principles of res judicata or issue estoppel applied.
An applicant may rely on evidence of events or circumstances that occurred before the complaint period as long as that evidence is logically probative of an issue in dispute: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41 at 66-67 and ADT Act, s 73(2); see also Commissioner of Police, NSW Police Force v Butcher [2011] NSWADTAP 9 at [10], [16]-[18]. Mr Murtough's case is that the events and circumstances that took place in 2006 and 2007 support his allegation that the Bar Association breached the AD Act in 2009 and 2011. We are satisfied that that evidence is potentially relevant and therefore admissible.
Has the Bar Association breached the AD Act?
Unlawful for a 'qualifying body' to discriminate
It is unlawful for a "qualifying body" such as the Bar Association, to discriminate against a person on the ground of disability by refusing to confer or renew a qualification or authorisation, such as a practising certificate. Section 49J(1)(a) 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,
There is no dispute that the Bar Association is a qualifying body, that a practising certificate is an "authorisation or qualification" or that the Bar Association refused to confer that authorisation on Mr Murtough on three occasions between 2009 and 2011.
In final written submissions, Mr Murtough withdrew his reliance on s 49J(1)(b) relating to the terms on which a qualifying body confers an authorisation. That provision 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:
(b) in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification,
The effect of that withdrawal is that Mr Murtough no longer relies on an allegation that the Bar Association has contravened the AD Act by requiring him to sit for and pass the bar examinations. The significance of the withdrawal of this part of the complaint will become clear when we apply the tests for discrimination.
Does Mr Murtough have a disability as defined in the AD Act?
Mr Murtough identified his "disability" 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. 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 2007 to refuse to renew the applicant's practising certificate.
Mr Murtough relied on the following parts of the definition of "disability" in s 4 of the AD Act:
(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, 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.
The evidence in support of Mr Murtough's disability were medical reports of Dr Phillips dated 18 December 2006, Dr Ross dated 21 May 2007 and Dr Diamond dated 30 May 2007. In particular, Dr Ross opined in his report that Mr Murtough is suffering from:
(a) mood disorder - recurrent major depressive episodes
(b) harmful alcohol use
(c) obsessive compulsive personality traits
(d) chronic lymphocytic leukaemia
Mr Murtough identified the "relevant times" as December 2006 and July 2007. On that basis we have assumed that Mr Murtough's case is that the Bar Association discriminated against him in 2009 and 2011 on the ground of a disability that he "had in the past": AD Act, s 49A(c). That assumption is supported by the fact that Mr Murtough adduced no evidence of any disability he may have had in 2009 or 2011.
On the basis of the medical reports referred to above, we are satisfied that Mr Murtough suffered from mental illness at the times when the Bar Association made the three decisions in 2006 and 2007 to refuse to grant him a practising certificate. That illness was obsessive compulsive personality traits and a mood disorder involving recurrent major depressive episodes.
We are also satisfied that that illness meets the definition of a past disability: AD Act, s 4 and s 49A(c). We agree with the Bar Association's submission that Mr Murtough is specifically required to plead the manifestations of any disability on which he relies: Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92. However, in this case he did not rely on any such manifestations.
Elements of direct discrimination
Mr Murtough alleges that the three refusals to issue him with a practising certificate in 2009 and 2011 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,
At least one of the reasons for the treatment must have been the person's disability even if that reason was not the dominant or a substantial reason for the treatment: AD Act, s 4A.
To substantiate a complaint of direct discrimination, Mr Murtough must prove that the Bar Association treated him less favourably than, in the same circumstances or in circumstances which are not materially different, it would have treated a real or hypothetical person without that disability ("differential treatment"). In addition Mr Murtough must prove that there is a relationship of cause and effect between his past disability and the refusals ("causation"): Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [45].
Differential treatment
The differential treatment test involves comparing the way in which the Bar Association treated Mr Murtough by refusing his application for practising certificates on three occasions, with the way the Bar Association treated a real or hypothetical person who did not have Mr Murtough's past disability. Ordinarily the differential treatment test should be applied before the causation test because if there is no relevant differential treatment it is not necessary to decide whether that treatment was "on the ground of" the person's disability: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [45].
However, this Tribunal has recognised that in most cases the differential treatment test can only be addressed first when there is an actual, rather than a hypothetical, comparator: Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [59] to [65]. That is because the Tribunal cannot ordinarily answer the question of how a hypothetical person without a past disability would have been treated without forming a view as to whether the past disability was a reason for the treatment.
Mr Murtough's primary submission was that the comparator is a hypothetical person but, in the alternative, he submitted that four people identified in a table prepared by Mr D'Aeth, Director, Professional Development of the Bar Association, are appropriate comparators. The table is a brief summary of applications since 1998 from 34 lawyers seeking to return to practice at the bar following a period of absence and the outcome of those applications. Mr Murtough identified lawyers "L", "O", "P" and "X" as being appropriate comparators. Each of those people had been absent from practice for between 3 and 5 years. Three were not required to sit for the bar examinations and one was required to sit for two of the three exams. The table records that three of the four returned to practice.
To validly compare the way a particular person was treated with the way Mr Murtough was treated, the circumstances have to be the "same" or "not materially different". The table provides only a very brief summary of the circumstances of each of the 34 lawyers but it does record, in relation to "L", "O", "P" and "X" that their occupation or activity in the period when they were not practising at the bar was "solicitor" ("L" and "P"), "Lecturer, Oxford. Advocate, UK" ("O") and "barrister in South Africa" ("X").
Mr Murtough was not practising law during his period of absence from the bar and his practice was very limited between 1998 and 2006. Nevertheless, he invited the Tribunal to find that his situation could be compared with that of "L", "O", "P" and "X" because he was engaged in litigation as a self-represented party during that time.
The Bar Association provided some evidence of the litigation in which Mr Murtough was engaged. It comprised a schedule of transcripts of court proceedings where Mr Murtough's health had been mentioned. From 24 February 2006 when Mr Murtough was suspended from practice, the schedule records at least some of the proceedings in which Mr Murtough was involved as a party. Mr Murtough asked the Bar Association in correspondence not to draw adverse inferences from his conduct as a self-represented litigant.
We accept that Mr Murtough was engaged in litigation as a self-represented party in several civil and criminal proceedings at least until March 2010. Mr Murtough says that those proceedings included successfully overturning a taxation conviction and fines and successfully challenging a proposed Apprehended Domestic Violence Order. Mr Murtough did not take the Tribunal to any evidence in support of that assertion so we are unable to make a finding about it.
Mr Murtough's involvement in numerous proceedings as a self-represented party is materially different from acting in a professional capacity as a solicitor or as an advocate in NSW or in another common law jurisdiction. The transcripts provided by the Bar Association demonstrate that on numerous occasions Mr Murtough's ill health interfered with his ability to prosecute or defend proceedings. We are not satisfied that Mr Murtough's involvement as a self-represented party makes it appropriate to compare his situation with that of "L", "O", "P" or "X", all of whom had been either solicitors or barristers during at least some of the time they had been absent from the NSW bar.
It follows that Mr Murtough has not identified a real person with whom he can be compared. If there is no actual comparator, Mr Murtough submitted that a hypothetical comparator is a barrister:
(1) who does not have a disability;
(2) whose application for a certificate in 2006 was not rejected, and who accordingly held a practising certificate from December 2006 until 30 June 2007;
(3) who did not actually practise at the bar during that period; and
(4) who applied for a practising certificate in early 2009.
Mr Murtough says this person would not have been required to sit the bar exams and would have been granted a practising certificate in 2009.
In the scenario put forward by Mr Murtough, the circumstances are materially different because the comparator retains his or her practising certificate but does not practise. By changing the circumstances, Mr Murtough seeks to highlight a perceived unfairness in the Bar Association's Policy. That perceived unfairness is that a person who does not practise for more than two years, even though he or she has a practising certificate, will not be required to re-sit the bar examinations.
The fairness or reasonableness of the Policy is not an issue in dispute. The comparison for the purposes of direct discrimination must be made in circumstances which are the same or not materially different including that the comparator did not have a practising certificate for more than two years. In our view, the relevant hypothetical comparator is a barrister who:
(1) did not have a disability in 2006 and 2007;
(2) had had a very limited practice from 1998 to 2006;
(3) did not hold a practising certificate and did not practise law for at least two years from 2006;
(4) applied for a practising certificate in early 2009;
(5) was required to sit for the bar exams; and
(6) failed the bar exams.
By removing the person's past disability from the scenario, but ensuring that the other circumstances are as close as realistically possible to the applicant's circumstances, the differential treatment test comes into focus. We are satisfied that this hypothetical comparator would have been refused a practising certificate because he or she failed the bar exams. That is, a hypothetical comparator without a past disability would have been treated in exactly the same way that Mr Murtough was treated. This is a rare case where the Tribunal can answer the question of how a hypothetical person without a past disability would have been treated without first forming a view on the issue of causation.
As the differential treatment test has not been established, it is not strictly necessary to consider the second part of the test for direct discrimination - causation. Nevertheless, we will do so for completeness.
Causation
The second part of the definition of direct discrimination requires the Tribunal to determine whether the treatment was "on the ground of" Mr Murtough's past disability. Courts have interpreted that phrase to mean whether at least one of the "real", "genuine" or "true" reasons for the treatment was the person's past disability: Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92, 163. The test for causation is not the so-called "but for" test which asks whether, "but for" Mr Murtough's past disability, he would have been refused a practising certificate in 2009 and 2011: Purvis v State of New South Wales [2003] HCA 62 at [155]-[156] (2003) 217 CLR 92 at 143-144.
Even though four of the seven judges in Purvis supported the "real", "genuine" or "true" reason test, they came to different conclusions. McHugh and Kirby JJ concluded that the real reason for excluding a student with a disability from school was his disability: [140] to [166]. Gleeson CJ and Callinan J concluded that the real reason for the exclusion was concern for the health and safety of others because of the student's violent behaviour: [13], [14].
In Australian Anti-Discrimination Law, the Federation Press, 2008 at 104, Rees, Lindsay and Rice make the comment that the difference in opinion expressed by the justices of the High Court in Purvis was not because they were applying a different test. Gleeson CJ and Callinan J focused on the Principal's ultimate reason for excluding the student from the school, that is his concern about the health and safety of others. On the other hand, McHugh and Kirby JJ traced the Principal's decision to exclude the student back to his disability because it was as a result of that disability that the student acted in a manner which caused the Principal to hold concerns about the health and safety of others.
The decision in Purvis, and the commentary to which we have referred, highlights the central issue about causation in these proceedings. How proximate must the person's disability be in order to be regarded as a reason for the treatment?
According to Mr Murtough, the links between the allegedly unlawful treatment and his past disability are as follows:
(1) the Bar Association refused to grant Mr Murtough a practising certificate in 2009 and 2011 because he had not passed written bar examinations;
(2) the requirement to sit for and pass written bar examinations was imposed because of:
(a) his period of absence from the bar; and
(b) his limited practice since 1998;
(3) the reason for Mr Murtough's period of absence from the bar was the Bar Association's:
(a) decision to suspend him in February 2006 because of his disabilities;
(b) decision to refuse to grant a practising certificate in December 2006 because of his disabilities; and
(c) two decisions to refuse to grant a practising certificate in July 2007 because of his disabilities.
Mr Murtough appears to have inadvertently included the suspension decision in his written submissions and excluded one of the refusals. We understand from the Points of Claim that his case relied only on the three decisions to refuse a practising certificate in 2006 and 2007.
According to Mr Murtough, the refusals to grant him a practising certificate in 2006 and 2007 were because of his disabilities at that time. He expressed this submission by saying that the 2006 and 2007 refusals were based directly on the ground of his past mental illness or he was discriminated against at that time on the basis of a characteristic generally imputed to people with his disability, namely a "lack of organised work characteristic": AD Act, s 49B(2). This submission is misconceived because the issue is not whether the previous conduct meets the definition of direct discrimination in the AD Act. The issue is whether there is a sufficient causal connection between his disability in 2006 and 2007 and the refusals to grant him a practising certificate in 2009 and 2011 to make the later refusals unlawful.
We understand Mr Murtough's submission to be that one of the real, genuine or true reasons for the Bar Association refusing him a practising certificate in 2009 and 2011 was that he had previously had a disability. In support of that contention, Mr Murtough submitted that his mental illness in 2006 and 2007 was a reason for the Bar Association's decision to refuse practising certificates at that time. In making those decisions, the Bar Association relied on medical reports detailing Mr Murtough's mental illness. It decided, for reasons, some of which were based on Mr Murtough's mental illness, that he was not a "fit and proper person" to hold a practising certificate. The Bar Association concluded, partly because of his mental illness and the effect that that illness had on him, that Mr Murtough was unable to carry out the inherent requirements of practice at the bar.
We are satisfied that Mr Murtough's disability in 2006 and 2007 was one of the reasons for the Bar Association's decisions. We stress that this finding is not a finding that the Bar Association breached the AD Act at that time. We have not considered or applied the relevant tests in s 49J(1) and s 49B or the inherent requirements defence in s 49J(2).
Even though Mr Murtough's disability was a reason for the 2006 and 2007 refusals, the question is whether his past disability was also a reason for the 2009 and 2011 refusals. We accept that the refusals led to him being absent from the bar for more than two years. The third year of absence was because he did not apply for a practising certificate in 2008/2009. We also accept that the period of absence was one of the reasons for requiring Mr Murtough to sit the exams. He failed all, and later some, of those exams. Any concerns about how those exams were marked or whether Mr Murtough should have been afforded a greater degree of accommodation are irrelevant because that is not how Mr Murtough pleaded his case.
In effect, Mr Murtough relies on the "but for" test of causation. If events are traced back far enough, it can be said that "but for" his disability, he would not have been absent from practice for more than two years, would not have been required to sit for the bar examinations and would not have failed those exams. However, that is not the test for causation in s 49B(1) of the AD Act.
Mr Murtough's disability in 2006 and 2007 is too remote from the decisions to refuse his applications for practising certificates in 2009 and 2011 to be "on the ground of" that disability. The proximate reason for the refusals was that Mr Murtough had not passed all the bar exams. Even going back a further step to the application of the Policy to him, Mr Murtough pleaded that it was his absence from practice that led to the application of the Policy. It was not his case that the Bar Association had singled him out because of his disability and applied the Policy to him for that reason.
Finally, we note that the Bar Association made it clear that had Mr Murtough passed the exams, it would still have needed to be satisfied that he was a fit and proper person to be issued with a practising certificate.
The complaint is not substantiated.
Defences
If Mr Murtough had established a breach of s 49J(1)(a), the Bar Association would have relied on two defences: the "inherent requirements" defence in s 49J(2) and the exemption for acts done under statutory authority in s 54. The inherent requirements defence is expressed in the following terms:
(2) Nothing in subsection (1) (a) or (c) renders unlawful discrimination by an authority or body against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular profession, trade or occupation and, if the person is already a member of the profession, carrying on the trade or engaged in the occupation, the person's performance in the profession trade or occupation, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability would be unable to carry out the inherent requirements of the profession, trade or occupation.
The Bar Association's submission was that the bar exams are necessary to test and maintain the skill level of barristers. Because he failed those exams, Mr Murtough would not be able to carry out the inherent requirements of being a barrister.
Mr Murtough invited the Tribunal to find, on the basis of the evidence of Mr D'Aeth, Director, Professional Development for the Bar Association, and Mr Roger Gyles QC, that the Policy:
(1) is not transparent;
(2) is susceptible to bias; and
(3) is not an objective method for ensuring the maintenance of relevant skill levels.
Mr Murtough also made the point that barristers who maintain their practising certificates each year, but who do not practise, are not required to re-sit the exams.
Given our finding that the Bar Association has not breached s 49J(1)(a) of the AD Act, it is not necessary to make a finding as to whether the Bar Association would have been able to establish the "inherent requirements" defence. As the evidence of Mr Roger Gyles QC went mainly to that issue, there is no need to recount that evidence or make findings in relation to it. Similarly, we have not determined whether the defence in s 54, for acts done in compliance with the provisions of the LPA, would have applied.
We note that Mr Murtough did not provide evidence or submissions about any remedy he may have sought had the complaint been substantiated.
Order
The complaint is not substantiated.
Decision last updated: 13 November 2012
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