Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59 (21 March 2005)

Last Updated: 22 March 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59


PARTIES: APPLICANT
Ping (Peter) Lin
RESPONDENT
American International Assurance Company (Australia) Pty Ltd



FILE NUMBERS: 031102

HEARING DATES: 21/12/2004

SUBMISSIONS CLOSED: 21/12/2004



DECISION DATE: 21/03/2005

BEFORE: Britton A - Judicial MemberBolt M - Non Judicial MemberPan H - Non Judicial Member





LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Queensland v JL Holdings Pty Ltd [1997] HCA 1
Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5

APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
summons - application for issue of

MATTER FOR DECISION: Preliminary matter


APPLICANT REPRESENTATIVE: APPLICANT
I Archibald, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT
D Sloan, solicitor

ORDERS: 1.The application made by the Applicant for a fresh summons to be issued on the Respondent for production of documents is refused
2.The application by the Respondent made under s. 111(1) of the Anti-Discrimination Act 1977 is refused
3.The Respondent to file and serve any documents on which it seeks to rely, including witness statements, within 42 days of the date of these orders
4.The Applicant to file and serve any evidence in reply within 7 days of receipt of the Respondent’s material
5.The matter to be set down for hearing at a date to be fixed by the Registrar. The parties to advise the Registrar of any unavailable dates within seven days of the date the Respondent’s material is filed.


Reasons for Decision:

REASONS FOR DECISION

1 Two issues fall to be determined at this stage in the proceedings. First, the Applicant, Mr Peter Lin, seeks orders requiring the production of certain documents by the American International Assurance Company (Australia) Pty Ltd. He alleges that AIA, has failed to produce documents required to be produced under Summonses issued by the Tribunal on 14 October 2003 and on 4 June 2004.

2 Second, the Respondent in this matter, American International Assurance Co (Australia) Pty Ltd, brings an application under s.111(1) of the Anti-Discrimination Act 1977 for the dismissal of these proceedings for want of prosecution by Mr Lin and his failure to comply with the Tribunal’s directions in respect of the management of this case.

3 It is convenient to deal with both matters simultaneously because the facts relating to both applications overlap.

4 The Applicant contends that certain documents have not been produced and that if the missing documents are not forthcoming it would be significantly prejudiced in the preparation of its case.

5 Attached to the Applicant’s application for interlocutory orders dated 16 November 2004 is a schedule outlining the documents produced or agreed to be produced by the Respondent under the Summons of October 2003 and pursuant to the further Summons of June 2004. It is unnecessary for current purposes to recite that list. The Applicant contends that every time he has pressed for the production of documents previously said to be unavailable that some have been produced. He now makes further application for further production.

6 The Respondent’s case is that there is nothing further to produce and that it has fully complied with all orders made previously.

7 In relation to its dismissal application, the Respondent submits that on four separate occasions directions have been made in this matter that required the Applicant to file and serve documentary material (30 October 2003, 19 February 2004, 29 March 2004 and 12 August 2004) and that, despite the fact that on three of these occasions the orders were made by consent, the Applicant has at no time fully complied with any of the directions that have been made, and has twice completely ignored them.

8 The Respondent contends that the Applicant and his legal representatives have been dilatory in complying with the timetable or seeking further directions or in anticipating potential problems. It complains that the Applicant's solicitors have often failed to respond to letters from the Respondent's solicitors in this regard. The Respondent asserts that it has been usually left to it to initiate case conferences for the purposes of amending the timetable. This has resulted in the hearing twice being vacated.

9 The Respondent states that the failure by the Applicant to comply with directions prompted it, on 16 March 2004, to move the Tribunal to list the matter for dismissal. This matter was the subject of discussion at a case conference on 29 March 2004. The Respondent elected not to proceed with the application, largely on the strength of assurances from Mr Archibald of counsel that the Applicant would comply with the timetable that was made on that occasion. Almost eight months have since passed, during which there has been further non-compliance by the Applicant and arguably the matter is little advanced from the point it had reached in March 2004.

10 According to the Respondent, the only substantive reason that has ever been offered to explain the Applicant's non-compliance with directions has been the repeated claim that the Respondent has failed to comply with the Summonses to Produce that were issued on 14 October 2003 and 4 June 2004. The allegation of non-compliance with the Summons was first canvassed during the case conference on 19 February 2004, and was the subject of discussion at each subsequent case conference and in numerous letters between the parties, culminating in a hearing on 12 August 2004. The matter has since been resurrected in letters from the Applicant's solicitors to the Tribunal dated 26 October 2004 and 16 November 2004.

11 The Respondent asserts that the Summons that was issued on 14 October 2003 must be read in light of the agreement that was reached between the parties on 30 October 2003 as to how the Summons was to be construed. This agreement was recorded in a letter from Ebsworth & Ebsworth to LLL Lawyers dated 3 November 2003. The Respondent says that the Applicant has never suggested that that letter inaccurately recorded the agreement reached on that occasion. Further, the Respondent argues that the Summons issued on 4 June 2004 has to be viewed in light of the Tribunal’s orders made on 12 August 2004.

12 The Respondent reiterates that it has complied with the Summonses (as modified) by producing all of those documents in its possession that respond to the Summonses. The Respondent claims that it has been at pains to point this out to the Applicant. The Respondent states that it has repeatedly advised the Applicant and his representatives in case conferences that it has no further documents to produce in answer to the Summonses. This was also confirmed to the Tribunal during the hearing on, 12 August 2004.

13 It says that letters from Accentro Legal to the Tribunal dated 26 October 2004 and 16 November 2004 do little more than assert that the Applicant expected that more documents would be produced and argues that repeated assertions by the Applicant that the documents do, must or should exist are of no assistance to either the Respondent or the Tribunal.

14 More particularly, says the Respondent, the issues raised in the correspondence of 26 October 2004 and 16 November 2004 were (or could have been) ventilated at the hearing on 12 August 2004. It denies any suggestion in those letters that the Applicant did not have a proper opportunity to inspect the documents that were produced on 12 August 2004 (in answer to the Summons issued on 4 June 2004). It points to the fact that the Applicant was given an opportunity to inspect the documents during a relatively lengthy adjournment of the proceedings on 12 August 2004.

15 It argues further that a proper examination of the letters of 26 October and 16 November 2004 make it clear that the issues now being raised again by the Applicant relate to the Summons that was issued on 14 October 2003. This it says is apparent from the terms of the orders sought and the reliance by the Applicant's solicitors on their letter of 10 March 2004 to Ebsworth & Ebsworth, referred to in paragraph (c) on page 2 of the letter of 16 November 2004. In any event, it remains the Respondent's position that Items 1.1 to 1.6 of the Summons issued on 4 June 2004 largely incorporate the documents sought in the Summons issued on 14 October 2003, a matter which was raised in a letter from Ebsworth & Ebsworth to LLL Lawyers dated 5 July 2004. The Respondent contends that such an overlap of the two Summonses was not seriously in dispute during the hearing on 12 August 2004.

16 In short, it says that the letters of 26 October 2004 and 16 November 2004 do not raise any new material that could not have been raised during the hearing on 12 August 2004 and, for that reason, the matters raised in the letters should not stand in the way of the Tribunal exercising its discretion to dismiss the matter.

17 Further, the Respondent submits that the letters of 26 October 2004 and 16 November 2004 are consistent with a pattern of behaviour that the Applicant has demonstrated throughout these proceedings. It says that at the case conference on 19 February 2004, Mr Archibald made assertions that there had been inadequate compliance by the Respondent in respect of the Summons issued on 14 October 2003. Despite this, he then consented to a timetable for directions. When the matter was brought back before the Tribunal on 29 March 2004 as a result of the Applicant` s failure to comply with the directions made on the previous occasion, Mr Archibald defended the Applicant's default by purporting to rely on the same alleged non-compliance with the Summons as had been raised on 19 February 2004. The Respondent notes that, once again, however, he consented to an amended timetable.

18 According to the Respondent, a similar situation arises now. It says that arguments were made at great length on 12 August 2004 concerning the adequacy or otherwise of the Respondent's production of documents and certain orders were made by the Tribunal in this regard. A timetable for directions was made on 12 August 2004. When the matter was re-listed for a case conference on 9 November 2004 (once again at the instigation of the Respondent) it says that Mr Lin, on behalf of the Applicant, reverted to the same arguments in relation to non-compliance as had been raised as early as 19 February 2004.

19 The Respondent argues, in effect, that as a result of the Applicant’s dilatoriness and fixation upon documents that cannot be produced, the proceedings are going around in circles and that the Tribunal ought therefore intervene to prevent further futile argument by dismissing the proceedings.

Conclusions

20 In relation to the Applicant’s application, he has produced no evidence that the documents he continues to press for in fact exist. It is plain that he is hoping to find evidence useful to him but has been frustrated. While there may be a fine line between an impermissible "fishing expedition" and a genuine use of the Summons process to produce relevant evidence before the Tribunal, in this case it appears to the Tribunal that Mr Lin is merely fishing. Moreover, nothing appears to have changed since August last year. It is impossible to escape the conclusion that this is simply a repeat performance of the interlocutory proceedings of 12 August 2004 and that the application lacks any substantial merit.

21 On the other hand, the application under s.111(1) seems far more powerful. That section provides as follows:

Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance or that for any other reasons the complaint should not be entertained, it may dismiss the complaint.

22 This provision was the subject of discussion in Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5 (4 March 2002). In that case the Appeal Panel made the following comments in relation to the section:

The language in purpose of s 111 (1) suggests that a beneficial construction (that is, one which favours the Appellant as the person claiming victimisation) is not called for. Its purpose is to allow the Tribunal in certain circumstances and in the exercise of its discretion to dismiss a complaint at any time in the course of proceedings. There is nothing on the face of the provision which warrants limiting "any other reason" to a genus of frivolous or vexatious or lacking in substance or misconceived. Given that these bases for dismissal include both objective and subjective features of the complaint itself, the phrase "any other reason" must refer to something other than the content or character of the complaint In other words, it must be capable of encompassing some aspect of the proceedings themselves such as a failure to diligently prosecute a complaint. The legislation thereby recognises that a complaint may not be frivolous, vexatious, misconceived or lacking in substance, yet if the complainant has demonstrated either an unwillingness or an inability to cooperate with the Tribunal and the Respondents in having the matter ready for hearing within an acceptable time, the complaint may none the less be dismissed.

23 All courts and tribunals not only have a right but an obligation to protect their own processes. They are also guardians of the justice system for all parties that call upon them or may do so in future. Courts and tribunals are not lying idle waiting upon users to wander by but are heavily-worked organisations whose time and other resources are precious. This Tribunal now operates under tight time standards which reflect its own determination and the public expectation that all matters will proceed with dispatch. It goes without saying that the resources of the Tribunal are limited and that to waste time and resources on one case means that the progress of the whole of the Tribunal’s list is slowed down.

24 In Queensland v JL Holdings Pty Ltd [1997] HCA 1 Kirby J discussed, among other things, the importance of case management principles and the modern understanding of the close relation between them and general principles of justice:

Although "some form of case management has always existed", the role of judges in Australia in directing the progress of at least large and complex litigation has increased greatly in recent years. Such functions are now regarded as a necessary and orthodox part of the judicial function. The view has been expressed by experienced Australian judges that, without more effective management of litigation, the system would be likely to collapse. The conviction that accumulating delays occasion serious injustices has led to a greater use of case management as the only effective means by which judges can respond to their ever increasing case loads without benefit of commensurate increases in judicial numbers and resources. The advent of judicial management to replace the passive observance of the "game" by a neutral judicial umpire, has produced a context of judicial intervention, case control, electronic filing and other reforms which should not be overlooked in reviewing the exercise of a judicial discretion in a particular case. Not only is a return to the languid days in which Cropper v Smith was decided impossible. Any attempt to do so would now afford justice to one litigant at a potential cost of inflicting serious injustice on many others and on the public. The gradual transformation of judicial functions in the way described is not confined to Australia. It exists in the United States of America. It has also been accepted in England. Some commentators suggest that the change in the judicial role represents the adaptation of the traditional common law concept of the judiciary to interventionist techniques of judging typical of the civil law.

25 While the attainment of justice between parties in dispute by a hearing on the merits is the primary focus of all courts and tribunals, there may come a point at which it becomes unfair to continue to grant indulgences to one party in a dispute. Costs, even in forums in which they are generally available, are rarely an entirely satisfactory compensation for the party not in default if for no other reason than the fact that litigating a dispute is, of itself, a strain and for many people requires them to "put their lives on hold" until the case is concluded.

26 Given that the Tribunal has a limited discretion to order costs, the option of seeking to compensate for any prejudice suffered by a party with an order for costs is exercised with considerable circumspection. Up to now, no orders have been made against the Applicant for costs notwithstanding the indulgences he has so far received. This is another factor that ought be placed into the balance in considering the Respondent’s application.

27 In our opinion, this application under s.111(1) is very finely balanced. It seems to us that the Applicant has not pursued this case with the reasonable vigour the Tribunal is entitled to expect of litigants. That much is clear from an examination of the chronology of this case in the court file. Nevertheless, the fault may lie more with his legal representatives than with the Applicant. It may be that the time spent on fishing for evidence has distracted them from preparing the matter but the dilatoriness has not been so gross as to justify throwing the case out without a hearing. Nevertheless, it is also obvious that no further delay ought be countenanced in taking this matter to a hearing and that any further unmeritorious postponements caused by the Applicant may well result in summary dismissal of the complaint. The Applicant has been given an opportunity to put on his evidence in this matter and no further opportunity will be extended other than in reply.

Orders/Directions

1. The application made by the Applicant for a fresh summons to be issued on the Respondent for production of documents is refused.

2. The application by the Respondent made under s. 111(1) of the Anti-Discrimination Act 1977 is refused.

3. The Respondent to file and serve any documents on which it seeks to rely, including witness statements, within 42 days of the date of these orders.

4. The Applicant to file and serve any evidence in reply within 7 days of receipt of the Respondent’s material.

5. The matter to be set down for hearing at a date to be fixed by the Registrar. The parties to advise the Registrar of any unavailable dates within seven days of the date the Respondent’s material is filed.