Sebastian v Rail Infrastructure Corporation; Sebastian v State Rail Authority of NSW; Sebastian v Rail Infrastructure Corporation (No 2)

[2006] NSWADT 317

CITATION:	Sebastian v Rail Infrastructure Corporation; Sebastian v State Rail Authority of NSW; Sebastian v Rail Infrastructure Corporation (No 2) [2006] NSWADT 317
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Joseph Sebastian RESPONDENT Rail Infrastructure Corporation APPLICANT Joseph Sebastian RESPONDENT State Rail Authority of NSW APPLICANT Joseph Sebastian RESPONDENT Rail Infrastructure Corporation
FILE NUMBER:	041071; 041080; 051070
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	10/17/2006
DATE OF DECISION:	11/09/2006
BEFORE:	Rees N - Judicial Member; Gill M - Non Judicial Member; Mooney L - Non Judicial Member
CATCHWORDS:	Disability Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Sebastian v Rail Infrastructure Corporation; Sebastian v State Rail Authority of NSW; Sebastian v Rail Infrastructure Corporation [2005] NSWADT 281
REPRESENTATION:	APPLICANT M Beck, agent RESPONDENT C Ronalds, SC
ORDERS:	Sebastian v Rail Infrastructure Corporation (file no: 041071): Complaint dismissed; Sebastian v State Rail Authority of NSW (file no: 041080):Complaint dismissed; Sebastian v Rail Infrastructure Corporation (file no: 051070)Complaint dismissed.

REASONS FOR DECISION

Introduction

1 This case involves three separate complaints which were dealt with together. On 5 December 2005 the Tribunal made orders which were designed to give effect to a settlement agreement which had been entered into by the parties on 14 December 2004 (Sebastian v Rail Infrastructure Corporation; Sebastian v State Rail Authority of NSW; Sebastian v Rail Infrastructure Corporation[2005] NSWADT 281 hereinafter referred to as the ‘earlier decision’).

2 The Tribunal made the following orders on 5 December 2005:

Sebastian v Rail Infrastructure Corporation (file no: 041071)

1. Complaint dismissed upon the respondent satisfying the Tribunal that:

(a) the settlement sum has been paid to the applicant, and

(b) the respondent has complied with Paragraph 3 of the ‘Principles of Agreement’.

2. The applicant to pay the respondent the sum of $1000 by way of costs.

3. The respondent is granted leave to apply to the Tribunal for further orders pertaining to the implementation and operation of orders numbered 1 and 2.

Sebastian v State Rail Authority of NSW (file no: 041080)

1. Complaint dismissed upon the respondent satisfying the Tribunal that:

(a) the settlement sum has been paid to the applicant, and

(b) the respondent has complied with Paragraph 3 of the ‘Principles of Agreement’.

2. The applicant to pay the respondent the sum of $1000 by way of costs.

3. The respondent is granted leave to apply to the Tribunal for further orders pertaining to the implementation and operation of orders numbered 1 and 2.

Sebastian v Rail Infrastructure Corporation (file no: 051070)

1. Complaint dismissed upon the respondent satisfying the Tribunal that:

(a) the settlement sum has been paid to the applicant, and

(b) the respondent has complied with Paragraph 3 of the ‘Principles of Agreement’.

2. The applicant to pay the respondent the sum of $1000 by way of costs.

3. The respondent is granted leave to apply to the Tribunal for further orders pertaining to the implementation and operation of orders numbered 1 and 2.

The background to the case, the submissions of the parties, and the Tribunal’s reasons for making these orders were set out at some length in the earlier decision.

3 The applicant appealed against the decisions and orders of the Tribunal to an Appeal Panel. As the Appeal Panel characterised the decisions made by the Tribunal on 5 December 2005 as interlocutory decisions, it decided that leave was required in order to appeal against those decisions (see s 113(2A) Administrative Decisions Tribunal Act 1997). On 4 September 2006 an Appeal Panel of the Tribunal refused Mr Sebastian’s applications for leave to appeal against the Tribunal’s decisions (Sebastian v Rail Infrastructure Corporation and ors [2006] NSWADTAP 44).

4 The respondents have now invoked the leave granted to them by the orders made by the Tribunal on 5 December 2005. They seek orders that the three complaints be dismissed. On 13 September 2006 the judicial member of the Tribunal made directions that the respondents file and serve any material upon which they wish to rely in support of this application by 3 October 2006 and that the applicant file and serve any material in reply by 17 October 2006.

5 The respondents claim that they have now complied with the orders numbered 1(a) and 1(b) made in each of the three complaints because they state that they have paid the “settlement sum” to the applicant and they have complied with Paragraph 3 of the “Principles of Agreement”.

6 The respondents have filed an affidavit from Ms Amber Sharp, a solicitor employed the respondents’ lawyers Henry Davis York, in which she deposes to the fact that she sent a letter to the applicant by registered post on 3 October 2006 enclosing two cheques which together constitute the ‘settlement sum’ referred to in order number 1(a) in each complaint. Photocopies of cheques totalling the settlement sum are annexed to the affidavit. One of the cheques, which is for an amount that represents 50% of the settlement sum, is a bank cheque drawn on the Westpac Bank, while the other cheque, which also represents 50% of the settlement sum, is drawn on the account of the Rail Infrastructure Corporation, which is a large governmental authority.

7 In her affidavit Ms Sharp also deposes to the fact that on 9 March 2006 she sent a letter to the applicant in which she informed him that a “functional assessment” known as the “RailCorp Lantern Test” was now available. A copy of that letter is annexed to the affidavit. The letter also contained the name and telephone number of a person to contact if the applicant wished to undertake the “RailCorp Lantern Test”. This information relates to order number 1(b) in each complaint, the background to which is set out at some length in our earlier decision.

8 The applicant has not filed any material in response to Ms Sharp’s affidavit. The material set out in Ms Sharp’s affidavit and annexures satisfies us that the respondents have paid the settlement sum to the applicant and that they have complied with Paragraph 3 of the ‘Principles of Agreement’. In the circumstances the respondents are entitled to orders dismissing the complaints.

9 The Tribunal makes the following orders:

Sebastian v Rail Infrastructure Corporation (file no: 041071)

Complaint dismissed

Sebastian v State Rail Authority of NSW (file no: 041080)

Complaint dismissed

Sebastian v Rail Infrastructure Corporation (file no: 051070) Complaint dismissed