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Thompson v Rail Corporation NSW

Thompson v Rail Corporation NSW

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CITATION: Thompson v Rail Corporation NSW [2008] NSWADT 329

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
Bruce Thompson
RESPONDENT
Rail Corporation NSW

FILE NUMBER: 071138

HEARING DATES: 2 September 2008

SUBMISSIONS CLOSED: 2 September 2008

DATE OF DECISION:
10 December 2008

BEFORE: Britton A - Deputy President

CATCHWORDS: Amendment of complaint - Interim order

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

CASES CITED: Bernard v Manly Lawn Tennis Club Ltd [2006] NSWADT 174
Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148
Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54
Chi v Technical and Further Education Commission [2007] NSWADT 98
CP ob HP v NSW Department of Education and Training [2008] NSWADT 281
Lucy v Commonwealth (1923) 33 CLR 229
Gregory v Philip Morris Ltd (1988) 80 ALR 455
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Masters v Rail Corporation New South Wales [2007] NSWADT 45
McGowan v RailCorporation New South Wales [2006] NSWADT 220
New South Wales Teachers Federation v President, Anti-Discrimination Board & anor [2005] NSWADT 153
NZ v NSW Land and Housing Corporation [2006] NSWADT 126
Perera v Commissioner of Corrective Services [2007] NSWADT 115
Thompson v Rail Corporation New South Wales [2008] NSWADT 111
Wecker v University of Technology, Sydney [2005] NSWADT 232
West & ors v Commissioner of Police, NSW Police [2007] NSWADT 240
Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer (EOD) [2008] NSWADTAP 24

REPRESENTATION:
APPLICANT
In person
RESPONDENT
K Eastman, barrister

ORDERS: 1. The application to amend Mr Thompson’s complaints is refused
2. The application for interim orders is refused
3. The matter is listed for a further case conference on 4 February 2009 at 2 pm.

1 These reasons address two applications made by former RailCorp employee, Mr Bruce Thompson. The first is an application to amend complaints lodged by Mr Thompson with the Anti-Discrimination Board in April and June 2007 and that have been referred to the Administrative Decisions Tribunal. The second is an application for orders reinstating Mr Thompson until such time as the Tribunal determines those complaints.

2 RailCorp opposes both applications.

Complaints before the Tribunal

3 First complaint

On 12 April 2007, Mr Thompson lodged the first of a number of complaints against RailCorp with the Anti-Discrimination Board (the First Complaint). Mr Thompson alleged discrimination on the ground of homosexuality and sexual harassment, spanning the period 2003 to April 2007. Specifically he alleged that:

(a) On 29 April 2006, graffiti appeared in a train guard’s compartment depicting an image of him next to the words, ‘Guard Lollipop’.
(b) On 22 June 2006, a group of RailCorp employees were ‘offensively gossiping’ and ‘salaciously joking’ about him at Redfern Station. He heard them say, ‘Ask him how you order a quarter pounder in French’.

(c) On 30 October 2006, graffiti containing homophobic comments directed at him, appeared in the Guard’s toilet at Central Station.

(d) On 28 November 2006, he was advised by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWADT 329
Decision Date: 10 December 2008

CaseChat Overview and Summary

The case of Thompson v Rail Corporation NSW was heard by the court, where Mr Thompson sought to amend his complaint against the Rail Corporation NSW. Additionally, Mr Thompson requested interim orders to be made in light of the complaint. The nature of the dispute involved the validity and scope of the amendments proposed by Mr Thompson, as well as the appropriateness of issuing interim orders in the circumstances. The court was tasked with determining whether the amendments proposed by Mr Thompson were permissible and, if so, whether interim orders should be granted in light of the complaint.

The primary legal issues before the court were whether Mr Thompson's proposed amendments to his complaint were allowable and, if allowable, whether the court should grant interim orders. The court had to consider the procedural rules governing amendments to complaints, the merits of the proposed amendments, and the principles applicable to the granting of interim orders. In making its decision, the court needed to balance the need for procedural fairness and the efficient administration of justice with the potential prejudice to the defendant if amendments were allowed at a late stage.

In its reasoning, the court found that the proposed amendments by Mr Thompson did not meet the criteria for allowable amendments under the relevant procedural rules. The court was of the view that the amendments sought to introduce new causes of action which were not disclosed in the original complaint and would significantly prejudice the defendant's ability to prepare a defence. Furthermore, the court considered that the application for interim orders was premature, as the substantive issues in the complaint had not yet been fully ventilated. Consequently, the court refused both the application to amend the complaint and the application for interim orders. The matter was subsequently listed for a further case conference to allow the parties to address the substantive issues in the complaint.

Orders

Orders of the court

1. The application to amend Mr Thompson's complaints is refused 2. The application for interim orders is refused 3. The matter is listed for a further case conference on 4 February 2009 at 2 pm.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Thompson v Rail Corporation NSW [2008] NSWADT 329
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Bruce Thompson RESPONDENT Rail Corporation NSW
FILE NUMBER:	071138
HEARING DATES:	2 September 2008
SUBMISSIONS CLOSED:	2 September 2008
DATE OF DECISION:	10 December 2008
BEFORE:	Britton A - Deputy President
CATCHWORDS:	Amendment of complaint - Interim order
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Bernard v Manly Lawn Tennis Club Ltd [2006] NSWADT 174 Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54 Chi v Technical and Further Education Commission [2007] NSWADT 98 CP ob HP v NSW Department of Education and Training [2008] NSWADT 281 Lucy v Commonwealth (1923) 33 CLR 229 Gregory v Philip Morris Ltd (1988) 80 ALR 455 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Masters v Rail Corporation New South Wales [2007] NSWADT 45 McGowan v RailCorporation New South Wales [2006] NSWADT 220 New South Wales Teachers Federation v President, Anti-Discrimination Board & anor [2005] NSWADT 153 NZ v NSW Land and Housing Corporation [2006] NSWADT 126 Perera v Commissioner of Corrective Services [2007] NSWADT 115 Thompson v Rail Corporation New South Wales [2008] NSWADT 111 Wecker v University of Technology, Sydney [2005] NSWADT 232 West & ors v Commissioner of Police, NSW Police [2007] NSWADT 240 Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer (EOD) [2008] NSWADTAP 24
REPRESENTATION:	APPLICANT In person RESPONDENT K Eastman, barrister
ORDERS:	1. The application to amend Mr Thompson’s complaints is refused 2. The application for interim orders is refused 3. The matter is listed for a further case conference on 4 February 2009 at 2 pm.