Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Hearing dates: 11 October 2016 Date of orders: 29 November 2016 Decision date: 29 November 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: The application for dismissal for want of prosecution is dismissed. The application for dismissal as lacking in substance is dismissed. Catchwords: SUMMARY DISMISSAL – application to dismiss complaint of disability discrimination for want of prosecution and as lacking in substance – depends on circumstances of case – self-represented applicant – cause of delay - Legislation Cited: Anti-Discrimination Act 1977 (NSW), ss 49B(1)(a), s 49D(1), 92(1), 94A and 102 Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 38 and 55(1) Civil Procedure Act 2005 (NSW), s 56 Strata Schemes Management Act 1996 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 12.7 Cases Cited: AB v State New South Wales [2014] NSWSC 81 Birkett v James [1978] AC 297 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Green v Healthscope Ltd (t/as Hills Private Hospital) [2015] NSWCA 325 Hoser v Hartcher [1999] NSWSC 527 Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 State of New South Wales v Plaintiff A [2012] NSWCA 248 Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 Texts Cited: Bernard Carins, Australian Civil Procedure (10th edition, Thomson Reuters) Category: Procedural and other rulings Parties: Greg Chalker (Applicant) Murrays Australia Pty Ltd Representation: Solicitors: Applicant (self-represented) Clyde & Co Australia (Respondent) File Number(s): 1610293 Publication restriction: Nil REASONS FOR DECISION Overview 1. Murrays Australia Pty Ltd has applied for Mr Chalker's complaint of disability discrimination to be dismissed as lacking in substance or because he has failed to progress his complaint quickly. 2. Mr Chalker applied for a position of coach driver with Murrays Australia. As part of the assessment process he attended a medical assessment and completed a "driver questionnaire form". He alleges that he was not offered the position because he was perceived to have a disability. 3. I have decided not to dismiss the complaint. Mr Chalker is self-represented. He has attempted to comply with the Tribunal's directions but through a combination of not understanding what he needed to do and the stress associated with the litigation he has not fully complied. Nor is the complaint lacking in substance. Mr Chalker's complaint cannot be said to be "not reasonably arguable". Failing to progress the complaint Factual background 1. On 3 May 2016 The President of the Anti-Discrimination Board referred Mr Chalker's complaint of disability discrimination in employment to the Tribunal. A case conference was held on 29 June 2016 when detailed directions were made. The parties were offered mediation but Murrays Australia decided not to participate. Mr Chalker was given until 10 August 2016 to provide basic details about the legal basis for his complaint as well as witness statements and evidence of any loss or damage. He was not directed to file Points of Claim. 2. On 10 August 2016 Mr Chalker wrote to the Tribunal saying, in summary, that he alleged discrimination on the ground of disability and he characterised his complaint is one of direct discrimination. He said he was seeking compensation for loss of wages from the date of his application for employment until the date he was notified that he was unsuccessful. He also sought an order that Murrays Australia donate to a charity and pay his costs. He said he did not have any witness statements to submit but that he would be applying for a summons to be issued to the examining doctor to give evidence and provide medical records. 3. On 16 August 2016 Mr Chalker applied for an extension of time to comply with the Tribunal's directions and attached a short report from a psychiatrist in support of that application. Murrays Australia did not consent to the extension and submitted that the matter should be dismissed either as lacking in substance or because Mr Chalker had failed to appear: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 55(1)(b) or (c). The Tribunal granted the application to extend time and Mr Chalker was given until 20 September 2016 to comply with the directions. 4. On 20 September 2016 Mr Chalker wrote to the Tribunal repeating that his claim was one of direct disability discrimination. He provided two emails, one from him to the medical practitioner appointed by Murrays Australia enclosing a medical report from his own specialist and another email acknowledging receipt of that email. He added that he did not want to submit any further evidence "at this stage" but would like to reserve the right to summons the medical practitioner who examined him. 5. On 28 September 2016 Murrays Australia filed an application for summary dismissal. That application was set down for hearing on 11 October 2016. The legal test 1. The Tribunal has power to dismiss a complaint "if the Tribunal considers that there has been a want of prosecution of the proceedings": NCAT Act, s 55 (1)(d). The Tribunal's power to dismiss proceedings for want of prosecution is similar to the power in the Uniform Civil Procedure Rules 2005 (NSW), r 12.7 to dismiss proceedings if a plaintiff does not prosecute the proceedings with due despatch. 2. Historically, courts have been reluctant to dismiss proceedings unless there had been either an intentional and contumelious default on the part of the plaintiff or inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible: Birkett v James [1978] AC 297at 318 cited in Green v Healthscope Ltd (t/as Hills Private Hospital) [2015] NSWCA 325 at [26]. The stringency of that principle has been diminished with the enactment of the "overriding purpose" in legislation: State of New South Wales v Plaintiff A [2012] NSWCA 248 at [17] (Basten JA). That purpose is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": Civil Procedure Act 2005 (NSW), s 56. 3. The "overriding purpose" in the Civil Procedure Act is identical to the "guiding principle" in s 36 of the NCAT Act. The scope of the Tribunal's power in s 55 (1)(d) must be determined in accordance with that principle and the general legislative context: Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [41]. There are no rigid rules. The Tribunal should undertake a "balancing exercise, in the course of which a variety of factors may be considered": Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [103]; Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412. Relevant considerations include the length of the delay and associated costs, any explanation or excuse for the delay and any prejudice to the opposing party: Hoser v Hartcher [1999] NSWSC 527, per Simpson J at [19]–[30]. Consideration 1. Mr Chalker has a reasonable explanation for the delay. First, being a self-represented applicant, it is my view from his responses during the hearing, that he did not have a sophisticated understanding of how to characterise his case or what evidence he needed to substantiate the complaint. Although the Tribunal had explained what he needed to do at the case conference on 29 June 2016, when I spoke to Mr Chalker at the hearing, it was apparent that he did not fully understand that he needed to file a detailed statement about what had happened. 2. Second, Mr Chalker has disclosed that he has borderline personality disorder and provided brief evidence from his treating psychiatrist requesting a further period of time to comply with the directions. The stress of being involved in these proceedings was a factor in the delay. 3. Murrays Australia did not put forward any particular prejudice they would suffer if, despite the delay, the matter proceeds. In all the circumstances, I decline to exercise the discretion to dismiss the complaint for want of prosecution. Dismissal as lacking in substance Factual background 1. Alternatively, Murrays Australia applied for Mr Chalker's complaint to be dismissed as lacking in substance: NCAT Act, s 55(1)(b). 2. Following a selection process which included a medical assessment, Mr Chalker's application for employment was refused. Mr Chalker alleges that one of the reasons for the refusal was that Murrays Australia perceived that he had a disability. Following some discussion during the hearing, Mr Chalker agreed that his complaint was one of direct discrimination on the ground of perceived disability (borderline personality disorder) in breach of s 49D(1)(b) of the Anti-Discrimination Act 1977 (NSW). 3. A prospective employer will breach the Anti-Discrimination Act if he or she decides not to offer a person employment on the ground of disability and none of the exceptions is established: Anti-Discrimination Act, s 49D(1)(b). To substantiate his complaint Mr Chalker will have to prove that the decision not to employ him is direct discrimination as defined in s 49B(1)(a). Legal test 1. The relevant provision is s 102 of the Anti-Discrimination Act. That provision gives the Tribunal power to dismiss, at any stage, proceedings relating to a complaint on certain grounds on which the President of the Anti-Discrimination Board may also decline a complaint. One of those grounds is that the proceedings are "frivolous, vexatious, misconceived or lacking in substance": Anti-Discrimination Act, s 92(1)(a)(i). 2. The legislative context of these provisions includes the "guiding principle" set out in s 36 of the NCAT Act. In addition, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: NCAT Act, s 38(2). The Tribunal is also to act with "as little formality as the circumstances of the case permit": NCAT Act, s 38(4). 3. The power to dismiss a complaint because the conduct, even if proven, would not disclose a contravention of the legislation is similar to one of the inherent powers of courts. Courts may strike out proceedings that are bad in law or clearly hopeless: Bernard Carins, Australian Civil Procedure (10th edition, Thomson Reuters) at 504. A pleading will be struck out if the court is satisfied that even if the plaintiff proves all the factual allegations in the pleading, those facts would not establish the essential elements of a cause of action. 4. While directions are often made for an applicant alleging a breach of the Anti-Discrimination Act to lodge Points of Claim, formal pleadings are not always required and were not required in this case. Under s 94A, the complaint is to comprise the original complaint lodged with the President, any amendment to the complaint and any other documents or information obtained or recorded by the President that help identify the subject-matter of the complaint. Subject to the rules of procedural fairness, an applicant is not obliged to plead a cause of action in a way that would satisfy the rules of pleadings in courts. 5. The term "lacking in substance" has been interpreted to mean "not reasonably arguable". In Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 45 the Court of Appeal interpreted the phrase in the context of the informal investigative powers in the Strata Schemes Management Act 1996 (NSW). The Court concluded at [45] that, "It would be inappropriate given the extraordinary powers triggered by a finding that an application is lacking in substance, to attribute to the phrase a meaning other than "not reasonably arguable". Although the legislative context here is different, that interpretation is also apt given that the power to summarily dismiss a complaint should be used sparingly and only where there is a high degree of certainty that the complaint will not succeed: AB v State New South Wales [2014] NSWSC 81 at [50] quoting Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8]. Consideration 1. Murrays Australia submitted that Mr Chalker has not filed sufficient evidence to establish a prima facie case of discrimination. 2. Mr Chalker is not required to establish a prima facie case of discrimination. In my view, there is not a high degree of certainty that the complaint will not succeed. He was refused employment following a medical assessment. Mr Chalker may or may not be able to prove that disability was one of the reasons for that refusal, but he has a reasonably arguable case. Similarly, Murrays Australia may or may not be able to prove that their conduct comes within the exception in s 49D(4)(a). But the 'inherent requirements' exception is not so obviously applicable that it justifies summarily dismissing Mr Chalker's complaint. 3. Further directions were made for Mr Chalker to give to the Tribunal and Murrays Australia, a witness statement including any evidence of loss and damage. Orders The application for dismissal for want of prosecution is dismissed. The application for dismissal as lacking in substance is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 29 November 2016