Supreme Court New South Wales Medium Neutral Citation: Fletcher v TNT Australia Pty Limited [2013] NSWSC 1220 Hearing dates: 5 November 2012 and 6 May 2013 Decision date: 03 September 2013 Jurisdiction: Common Law Before: Adams J Decision: The amended summons is dismissed with costs. Catchwords: PRACTICE AND PROCEDURE - application to dismiss proceedings for want of prosecution - appeal to the Supreme Court under s 69 of the Supreme Court Act 1970 from the Equal Opportunity Division of the Administrative Decisions Tribunal - no arguable grounds disclosed - summons summarily dismissed Legislation Cited: Anti-Discrimination Act 1977 Uniform Civil Procedure Rules 2005 Supreme Court Act 1970 Cases Cited: Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 O'Callaghan v Loder [1983] 3 NSWLR 89 Hall v A&A Sheiban Pty Ltd (1989) 20 FCR 217 Category: Principal judgment Parties: Fletcher (Plaintiff) TNT Australian Pty Limited (Defendant) Representation: Counsel: N Furlan (Defendant) Solicitors: Self-represented (Plaintiff) McKells Solicitors (Defendant) File Number(s): 2012/43283 Judgment Introduction 1In July 2011 Mr Fletcher brought proceedings in the Equal Opportunity Division of the Administrative Decisions Tribunal complaining of race discrimination under the Anti-Discrimination Act 1977. The complaint, which was against his former employer TNT Australia Pty Limited (TNT), was declined by the President of the Anti-Discrimination Board. Mr Fletcher sought leave to proceed with his complaint in the Equal Opportunity Division of the Administrative Decisions Tribunal. Leave was refused and Mr Fletcher took proceedings in this Court in an endeavour to reverse that outcome. Background 2The dispute arose when Mr Fletcher was working with TNT as a dockhand between 2005 and August 2010. The period covered by his complaint was 21 July 2009 to 21 July 2010, although there were several allegations concerning events before that period which are presently immaterial. Mr Fletcher raised a number of matters. Briefly, they involved a refusal to pay him paternity leave, short payment of $60 a week, being told a company sponsored course which he wished to undertake was available to suitable, as distinct from all, employees, losing out on overtime, being disciplined for a mistake he made whilst another unnamed colleague who made the same mistake was not disciplined, not being provided with proper assistance when he was sick at work and comments by other employees which gave him offence. The decision of the Tribunal 3The Tribunal, noting the complaints, considered the legal requirements under s 8(2)(a), (b) or (c) of the Anti-Discrimination Act relating to the terms and conditions of employment, access to promotion, training or other benefits and being subject to "any other detriment" and to the definitions of direct and indirect discrimination contained in s 7 of the Act. It is clear that Mr Fletcher was complaining of direct discrimination. The Tribunal noted that the alleged conduct fell within the areas in which the Act, in appropriate cases, applied, noting however, that the alleged comments made by fellow workers and managers were in a different category because an employer is not vicariously liable for racially harassing comments unless the employer's "omission to act... created the poisoned work environment", citing the decision of the Tribunal in Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 at [49]; O'Callaghan v Loder [1983] 3 NSWLR 89; Hall v A&A Sheiban Pty Ltd (1989) 20 FCR 217. 4The Tribunal identified other problems with Mr Fletcher's complaints relating to the requirements of differential treatment and causation. In relation to the latter, Mr Fletcher said that he was treated in the way that he complained of "because he was a whistleblower and that he was always fighting for justice... the Respondent employees did not help him and did not like him and that one of the reasons for that was his race". 5The following were the conclusions of the Tribunal - "Mr Fletcher's complaint lacks substance for several reasons: (1) some of the allegations are outside the period of the complaint as referred by the President of the Anti-Discrimination Board; (2) some of the allegations relate to conduct by people who were not employees of the Respondent at the relevant time; (3) many of the allegations lack particulars; (4) Mr Fletcher has not identified a relevant comparator in relation to any of the alleged conduct; (5) in relation to the conduct about leave, pay, promotion, overtime, training etc Mr Fletcher has not identified any evidence from which an inference could be drawn that a reason for that conduct was his race; (6) in relation to the conduct alleging that certain comments have been made: (a) Mr Fletcher has misinterpreted innocuous and off-hand comments as being threatening and/or racist; (b) the comments were not so repeated or pervasive that they would have affected the terms or conditions of his employment; (c) the Respondent investigated each of the complaints Mr Fletcher made when sufficient detail had been provided." Accordingly, leave was refused for the applicant's complaint of racial discrimination against TNT to proceed. Mr Fletcher takes proceedings in the Supreme Court 6Mr Fletcher commenced proceedings in this Court, ultimately filing an amended summons on 19 March 2012. The summons referred to commencing an appeal and seeking leave to appeal under Part 50 of the Uniform Civil Procedure Rules which deals with appeals to the Court made under express statutory provisions giving such a right. It is sufficient to say that no such statutory provision applied. On 4 April 2012 TNT applied to strike out the summons, relying also on a submission that no reasonable cause of action was disclosed. 7On 24 April 2012 Beech-Jones J struck out the summons but ordered Mr Fletcher to file and serve any further amended summons seeking, instead, relief under s 69 of the Supreme Court Act 1970 on or before 22 May 2012. His Honour took this course on the basis that, there being no statutory provision of an appeal, the form and substance of the proceedings were misconceived. However, he did not think that an order for summary judgment should be made at that stage since, although the grounds relied on by Mr Fletcher were difficult to follow, it appeared that they involved an alleged failure by the Deputy President to take into account relevant considerations and other complaints about a number of factual matters referred to in the Deputy President's reasons which may provide grounds for relief in the exercise of this Court's jurisdiction under s 69 of the Supreme Court Act. 8Mr Fletcher did not comply with the order as to the filing and serving of a further amended summons. Following a communication from TNT, on 24 May 2012 he made an application to the Court on 28 May 2012 for referral of his matter for pro bono legal assistance, to which Garling J acceded on 1 June 2012. 9On 23 July 2012 Mr Fletcher was ordered to file and serve his amended summons in a proper form by 6 August 2012 and the affidavits upon which he proposed to reply by 3 September 2012. The defendant was required to file and serve its affidavits by 17 September 2012. The matter was set down for hearing on 23 November 2012. On 6 August 2012 the plaintiff filed an amended summons seeking relief under s 69 of the Supreme Court Act. The ground stated in the amended summons was expressed as follows - "Torts - Negligence - Personal injury. Administrative law - Review decision arising under statute (individual rights). Racial discrimination - Constructive dismissal, unfair treatment, loss of enjoyment, mental distress, disappointment, negligence, breachness [sic] of duty of care, foreseeability of damage, aggravated injury and new injury, harassment, bullying, humiliation, omission to do something a reasonable man would do it, misleading conduct, unconscionable conduct, misconceived conduct, false representation, deceive, victimisation, race, descent, nationality, vilification, violence, intimidation, unhealthy conditions. Breach of contract, contractual indemnity." 10The relief claimed was "damages (Punitive), injunction" and "relief under s 69 of the Supreme Court Act 1970". The amount claimed was $20 million plus $60,000 for interest and service fees of $20,000. 11Attached to the amended summons was a letter addressed to the Court of Appeal which expressed "the purpose of this file" as being to explain the relationship of the racial discrimination case with his workers compensation case "and the discrepancies on facts by all lawyers involved in [sic] in this case especially and specifically delaying". A number of other explanations were given variously claiming that his case was mishandled by lawyers (I think retained by TNT, but this is not altogether clear) and that he was unable to get legal representation for himself. Detailed but confused reference is made to his medical condition, medical reports and the availability of doctors, asserting that, in effect, he had been the subject of racial discrimination but that, "the primary question is whether my injuries have resulted from some failure on the part of TNT to take reasonable care for my safety". Further allegations are made against the conduct of TNT, including assaults due to the failure of TNT to prevent workplace violence. It is unnecessary to give any further details: the letter contains 22 pages of very confused argument, the single important feature of which is that it does not identify any error made by the Deputy President except perhaps (but this is difficult to discern) that he disagreed with the accuracy with which the factual issues were described in the reasons. 12Mr Fletcher then sought an extension of time to file and serve his affidavits, to which TNT consented. Orders were made requiring him to file and serve his affidavits by 12 October 2012 and TNT to file its affidavits, if any, by 26 October 2012. On 24 September 2012 Mr Fletcher again sought an extension of time to file and serve his affidavits, a course to which TNT did not consent. In the result, Mr Fletcher did not serve his affidavits by 12 October 2012. On 24 October 2012 he sent an email to TNT's solicitor in offensive terms which did not in any sense deal with the proceedings in this Court. On 26 October 2012 TNT sought to re-list the matter, informing Mr Fletcher that it intended to seek an order dismissing his proceeding for want of prosecution. 13On 5 November 2012 Mr Fletcher sought to vacate the trial date (set down for 23 November 2012), essentially relying on grounds involving his medical condition and his seeking of medical assistance. By consent, I vacated the trial date and the orders in relation to the filing and serving of affidavits, ordering, however, that the matter was not to be re-listed for trial unless the plaintiff had first filed and served all of the affidavits on which he sought to rely, stating in the last of these that the material represents the entirety of that upon which he intends to rely, listing the matter for further directions before me on 6 May 2013. 14On 6 May 2013 Mr Fletcher again appeared in person, the defendant being represented by Mr Furlan. Mr Furlan informed me that, no further material having been filed in accordance with my order, TNT sought the dismissal of the proceedings as frivolous and vexatious, an abuse of process and for want of prosecution. Mr Fletcher said that he received notice that TNT proposed to seek these orders and to rely on affidavits, which essentially set out a history of the matter. Amongst the information provided was the fact that, on 25 January 2013 Mr Fletcher met with a solicitor of TNT to discuss settlement, however, Mr Fletcher did not accept an offer made to him. There was also a letter of 6 March 2013 in which TNT proposed a settlement of his workers compensation claim on a very limited basis. (I mention this because Mr Fletcher submitted to me that TNT had assumed "culpability for my injuries already" so that he was somewhat bemused as to why this present application was being made.) Mr Fletcher had also filed several affidavits which, in general, repeated in a somewhat different form, the matters to which he had already referred. Again no grounds were raised upon which any relief could be granted under s 69 of the Supreme Court Act, let alone the relief which Mr Fletcher claimed. 15At the hearing, Mr Fletcher complained about the transcript of reasons as unreliable and complained that the Deputy President "forgot a few huge points which is a few harassment and fights that were picked against me". The matters of which he complained he said were in his affidavit but, as I have mentioned, this did not carry the matter any further. The reasons for refusing leave tendered in the Court was certified by the Deputy President's Associate. 16I refused leave to file any further affidavits and reserved judgment. 17I should mention that whilst judgment was reserved on 12 July 2013 I received an email from Mr Fletcher complaining about the response of police to an allegation made by him that his car was broken into and documents relating to his ongoing court cases were stolen and, on 29 July 2013 he wrote about this matter again complaining about the response of the police. Neither of these communications refer to any relevant matter and I have, of course, disregarded them. Conclusion 18There being no grounds identified by Mr Fletcher justifying any grant of relief under s 69 of the Supreme Court Act, the amended summons is dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 September 2013