Fei v Director General, Department of Commerce (State of NSW) (No. 2) [2009] NSWADT 109 (14 May 2009)

Last Updated: 20 May 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Fei v Director General, Department of Commerce (State of NSW) (No. 2) [2009] NSWADT 109


DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
APPLICANT
Liu Fei

RESPONDENT
Director General, Department of Commerce (State of NSW)



FILE NUMBERS:
041075
041076
041077

HEARING DATES:
20 June 2008, 12 August 2008, 2 September 2008

SUBMISSIONS CLOSED:
11 March 2009



DATE OF DECISION:
14 May 2009

BEFORE:
Ireland G - Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Amendment Act 2008
Anti-Discrimination Act 1977
Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004

CASES CITED:
Crewdson v Niland and Ors (EOD) [2002] NSWADTAP 5
Fairey v Fairey (No. 2) [2001] NSWCA 173
Hoser v Hartcher [1999] NSWSC 527
In the Will of F B Gilbert (deceased) 1946 (46 SR) (NSW) 318
Re Lenijamar Pty Ltd; Domenico Picone and Margaret Anne Picone v AGC (Advances) Ltd [1009] FCA 520; [1990] FCA 520; 27 FCR 388

TEXTS CITED:


APPLICATION:
Applications of sections 102 and 107 of the Anti-Discrimination Act 1977

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person to 15 December 2008; M Tibbey of counsel from 15 December 2008 / Craig Milne & Company
RESPONDENT
T Anderson of counsel / A Paul, Crown Solicitor's Office

PUBLICATION RESTRICTION:


ORDERS:
1. That the applications be not granted.
2. Case conference to be held at 9.30am on 21 May 2009.


Reasons for Decision:

REASONS FOR DECISION

Background

1 This is a decision of the Tribunal on an application of the respondent seeking orders:

- pursuant to s 107(1)(b) of the Anti-Discrimination Act 1977 (the Act), as it was prior to its repeal of 1 January 2009, to dismiss the proceedings before it relating to the complaints of the applicant;

- pursuant to s 102 of the Act, to dismiss the whole of the complaints of the applicant.

2 The applicant first raised complaints with the President of the Anti-Discrimination Board (President) on 30 July 2002. The first complaint related to events that took place between January 2001 and October 2001 and arose out of the terms and conditions of his employment with the respondent. The complaint alleged that the applicant had been discriminated against on the grounds of race and disability.

3 Subsequently, the applicant lodged a total of seven complaints with the President between October 2002 and May 2003.

4 On 18 February 2004 the President declined each complaint on the ground of ‘lacking in substance’. Pursuant to s 91 of the Act (as it then provided), at the request of the applicant, the President referred each complaint to the Tribunal on 5 April 2004.

5 The Tribunal has held 23 case conferences between 9 June 2004 and 15 December 2009. At each case conference up to 8 June 2005, the respondent was represented by supervising officers of the respondent. On 14 April 2005 during a hearing of the first application by the applicant for the appointment by the Tribunal of a representative under s 70(1)(4) of the Act, to appoint a person to represent the applicant, the Tribunal became aware that the representatives of the respondent who had appeared at that hearing and at previous case conferences were persons who supervised the Departments of the respondent in which the applicant had been employed at the time of the alleged unlawful discrimination and victimisation. At that hearing the Tribunal indicated it would not allow persons who were potential witnesses in the hearing of those allegations to appear for the respondent. After 14 April 2005 Ms Anderson of counsel has appeared at case conferences and at other hearings on behalf of the respondent, under the instructions of the Crown Solicitor.

Filing of Points of Claim by the applicant

6 The applicant has appeared at each case conference and at each hearing held by the Tribunal. He has been unrepresented on each occasion except when represented by counsel instructed by a representative appointed under s 71(4) of the Act or by counsel or a solicitor pursuant to a grant of legal aid. At the majority of the occasions of case conferences or hearings, the applicant was unrepresented.

7 A large part of the time taken at case conferences related to attempts to have the applicant complete Points of Claim to enable the Tribunal and the respondent to ascertain prior to a hearing, the particular nature of the allegations of unlawful discrimination and victimisation to be determined by the Tribunal.

8 The Act contains no express requirement for the filing of Points of Claim. It is the practice of the Tribunal to have Points of Claim filed by applicants unless there is available sufficient information to make Points of Claim unnecessary or the circumstances of the complaint or of the parties make it impracticable to prepare Points of Claim and the parties would not be prejudiced if the complaints were heard in the absence of Points of Claim.

9 In relation to the complaints of the applicant, the Tribunal considered the applicant should be required prior to a hearing to clearly specify the particulars of the complaints which the respondent was required to answer.

10 The applicant found it difficult to comply with this requirement. He frequently informed the Tribunal at case conferences that his mental condition caused him such distress when he needed to reflect on the details of the circumstances surrounding his complaints, he could not continue the task.

11 However the applicant filed a document entitled ‘Applicant’s Points of Claim’ on 26 October 2004. It contained 21 pages and was in the form of a narrative setting out the events relating to his complaints. The document on page 20 stated (inter alia):

‘I wish to complete this document. There are still some issues about victimisation that I have suffered after lodging my complaint with the Anti-Discrimination Board of NSW.

Under the current circumstances and conditions, it is impossible for me to complete the documents by 26 October 2004. I intend to apply for legal assistance under the Law Society’s pro bono scheme.

I am not sure whether the Tribunal can grant me permission and the time to make my application to the Law Society, or whether I should file the uncompleted documents first.’

12 This document did not attempt, specifically, to connect parts of the narrative to the respective complaints lodged with the President or to indicate under which sections of the Act any part of the narrative should be considered. In an endeavour to assist the applicant to understand the relationship of the complaints to the relevant provisions of the Act, the Judicial Member following the case conference, on 16 February 2005 issued a document which summarised the outcome of the conference and ‘to facilitate the efficient management of the complaints’ related, under the heading ‘Jurisdictional Issues’, each item of complaint that had been referred to the Tribunal by the President, to what appeared to be the relevant provisions of the Act to which the complaints referred.

13 The applicant did not follow the concept outlined in this summary and continued, over a long period, to endeavour to complete his narrative statement. The last filing of a section of this statement was made by the applicant on 18 June 2008. The accompanying letter from the applicant to the Tribunal stated:

‘I accept the note prepared by the Judicial Member, Mr Ireland, relating to ‘jurisdictional issues’ to go forward as my Points of Claim.

I have attached my submission, pages 79-99 for your consideration.’

14 The Tribunal is not able to discern if the applicant’s statement is now complete.

15 It is relevant to have regard to the following correspondence from the applicant to the Tribunal.

16 In a letter to the Tribunal dated 31 October 2006, the applicant informed the Tribunal that:

‘Due to the effects of my mental disability and the medication, I am unable to complete the applicant’s Points of Claim, the narrative document (the Claim) on or before 31 October 2006.

I still wish to complete the Claim should the Tribunal allow me more time to do so. I have attached a recent medical report and pages 57-79 of my claim for your consideration.’

17 In a letter dated 7 February 2007, the applicant informed the Tribunal that:

‘I am sorry for overestimating the degree of my recovery and the effect of the medicine. When I began to write my Points of Claim (the narrative document), the symptoms of my mental disability relapsed.

This is the real reason that has made me unable to finalise the preparations of my case within the timeframes directed by the Tribunal, although the Tribunal has given me every reasonable opportunity to do so.

I, hereby, apply for the appointment of a representative to assist me.’

18 On 23 December 2005, following the appointment of Ms Ramjan (representative) and Mr Patch (counsel) on 14 April 2005, those representatives filed with the Tribunal a document head ‘Points of Claim’ supported by a document containing evidence that alleged only one act of victimisation arising out of the dismissal of the applicant by the respondent. Subsequently, the applicant disavowed these documents and applied to the Tribunal to revoke the appointment of Ms Ramjan. This application was granted by the Tribunal on 5 May 2006.

19 On 29 March 2007, Mr Baker, a solicitor, informed the Crown Solicitor that the applicant had applied for legal aid. Legal aid was granted to the applicant in August 2007 and on 6 February 2008, Mr Baker filed with the Tribunal a document headed ‘Amended Points of Claim’. This document related to three separate allegations of discrimination against the applicant on the ground of disability or imputed disability and to four allegations of victimisation of the applicant.

20 At a case conference on 8 February 2008 before Deputy President Hennessy, Ms Tibbey of counsel instructed by Mr Baker, informed the Tribunal that the applicant was not proceeding with complaints of race discrimination or complaints of victimisation. On 16 February 2008, the applicant wrote to Deputy President Hennessy stating that he did not authorise the withdrawal of complaints of racial discrimination or of victimisation.

21 On 27 February 2008 the applicant wrote to the Tribunal enclosing a document containing 59 pages requesting that that document be filed as part of ‘my affidavit.’

22 By letter dated 3 April 2008, the Legal Aid Commission advised Mr Baker that the grant of legal aid to the applicant was terminated and that he no longer acted for the applicant.

23 At a case conference on 15 December 2008 at which the applicant was represented by Mr Darcy, a solicitor, the Judicial Member directed (inter alia) that the applicant file fresh Points of Claim by 23 February 2009. Mr Darcy filed Amended Points of Claim with the Tribunal on 3 March 2009. The Amended Points of Claim are in identical terms to the Amended Points of Claim filed by Mr Baker on 6 February 2008 and contain a total of nine allegations of unlawful discrimination and of victimisation.

History of applications by the applicant for representation under s 71(4) of the Act and for representation through Legal Aid

24 The following is a chronology of the applications made by the applicant for representation:

1. An application under s 71(4) for the appointment of a representative was made on 22 March 2005. At a hearing on 14 April 2005, the Tribunal granted the application and appointed Ms Ramjan to represent the applicant.

2. An application by the applicant to repeal the order made on 14 April 2005, was lodged on 26 April 2006. Following a hearing on 5 May 2006, the Tribunal granted the application and revoked the order made on 14 April 2005.

3. An application to appoint a representative under s 71(4) of the Act, was lodged by the applicant on 7 February 2007. Following a hearing on 9 February 2007, the Tribunal dismissed the application.

4. The applicant lodged an application for leave to appeal against the Tribunal’s decision on 9 February 2007. On 27 August 2007, Deputy President Hennessy refused leave to appeal.

5. The applicant applied to the Legal Aid Commission for legal aid to pursue his complaints before the Tribunal, on 29 March 2007. This application was granted by the Legal Aid Commission in August 2007. Under that application Mr Baker was appointed as solicitor to represent the applicant and Mr Baker appointed Ms Tibbey as counsel to appear for the applicant.

The grant of legal aid was terminated on 3 April 2008.

6. An application to appoint a representative under s 71(4) of the Act was made to the Tribunal by the applicant on 2 September 2008. Following a hearing by the Tribunal of this application on 2 September 2008, the Tribunal granted the application and appointed Ms Ramjan as the representative of the applicant. Subsequently, Ms Ramjan advised the Tribunal that she was unable to continue with the appointment and the Tribunal appointed Ms Doratis in substitution for Ms Ramjan as the representative of the applicant. Mr Doratis has appointed Mr Darcy as the solicitor to assist her and Mr Darcy has instructed Ms Tibbey to appear as counsel on behalf of the applicant. These appointments are continuing.

Respondent’s applications under ss 102 and 107 of the Act

25 On 1 February 2007, the respondent filed with the Tribunal an application seeking orders:

(1) that pursuant to s 107(1)(b) of the Act, the Tribunal dismissed proceedings before it relating to the applicant’s complaints, and

(2) that pursuant to s 102 of the Act, the Tribunal dismissed the whole of the complaints.

26 The respondent did not press for a hearing of this application and on 6 May 2008, the respondent filed an amended application for dismissal, seeking the same orders as were sought in the application lodged on 1 February 2007. On this occasion, the application of the respondent was supported by a document titled ‘Amended Outline of Submissions.’ In support of his application, on 30 June 2006 the respondent filed a document headed ‘Further Written Submissions in Support of the Respondent’s Application for Dismissal.’ A hearing of the respondent’s application was held by the Tribunal on 20 June 2008 and on 12 August 2008. At each of these hearings the applicant was present but was unrepresented. Following the hearing on 12 August 2008, the applicant applied for the appointment of a representative under s 71(4) of the Act and that application, as referred to earlier, was granted by the Tribunal on 2 September 2008.

27 It is in the context of the various steps taken by the Tribunal and by the parties to have the hearing of the applicant’s complaints brought before the Tribunal for hearing, that it is necessary for the Tribunal now to consider the application for dismissal.

Application by respondent for dismissal under ss 102 and 107 of the Act

28 The Tribunal conducted hearings of the application on 20 June 2008 and 12 August 2008. At each of the hearing days the respondent was represented by counsel and the applicant was not represented but appeared in person. At the conclusion of the hearing on 12 August 2008, the Tribunal required the respondent to file a document by 26 August 2008 setting out details of the prejudice suffered by the respondent arising out of the delays in the hearing of the applicant’s complaints. The Tribunal also directed that the respondent file by 23 September 2008 any document he wished the Tribunal to consider in opposition to the respondent’s application. The respondent filed submissions containing details of its prejudice on 26 August 2008.

29 On 2 September 2008, the Tribunal on the application of the applicant, appointed Ms Ramjan as his representative. On 23 February 2009, Ms Tibbey of counsel, representing the applicant, submitted written submissions on behalf of the applicant in opposition to the application. These submissions related to the application for dismissal under s 102. On 11 March 2009, Ms Tibbey filed submissions in opposition to the application for dismissal under s 107.

Nature of the respondent’s application for dismissal

30 Section 102 and s 107(1)(b) of the Act, so far as they are relevant, are as follows:

‘Section 102

The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of the complaint under s 92(1)(a)(i) or (ii) or (b).

Section 107(1)(b)

The Tribunal may dismiss proceedings before it relating to a complaint if satisfied that:

..., or

(b) the proceedings are subject to a want of prosecution, or

(c) ...’

31 In relation to s 102 counsel for the respondent stated in submissions that the respondent relied on the ground that the President may decline the whole of a complaint under s 92(1)(b) of the Act.

32 Section 92(1)(b) is in the following terms:

‘Section 92(1)(b)

If at any stage of the President’s investigation of a complaint:

(a) ..., or

(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,

the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.’

33 The operation of s 102 and s 107 has differing consequences.

34 Section 102 provides for dismissal of a complaint with the result that the complainant is prevented from pursuing the complaint further. Section 107 provides for the dismissal of the proceedings relating to a complaint. In this event the complaint is not extinguished and fresh proceedings may be pursued by the complainant, although the Act contains no provision which deals with such an eventuality.

35 The Tribunal was concerned that as s 107(1)(b) is a provision which deals specifically with the issue of want of prosecution of a complaint, it was not open to apply under s 102 on the general ground of s 92(1)(b) to seek to dismiss a complaint on the basis of prejudice arising out of a want of prosecution of the complaint. Section 107 was a new provision inserted in the Act by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 No. 79 which took effect from 2 May 2005.

36 Section 102, in its present form, was enacted by the same Amending Act which omitted s 111 of the Act. Section 111 was a more comprehensive provision providing for the dismissal of complaints on grounds not dissimilar in effect to the grounds contained in s 102.

37 The Tribunal can find no decision of the Tribunal or of the courts which considered the application of s 102 or s 107(1)(b) in relation to claims of want of prosecution. In Crewdson v Niland and Ors (EOD) [2002] NSWADTAP 5, the Appeal Panel of the Tribunal considered whether the original Tribunal had erred in applying s 111(1) as it then was, in dismissing the complaints of the applicant for want of prosecution following the appellant’s application to withdraw his complaint. The Appeal Panel noted that the withdrawal of the complaint was a tactical response by the appellant to remove the proceedings from the Tribunal. The Appeal Panel decided that the words ‘for any reason’ in s 111(1) was sufficiently broad to allow for a dismissal of the complaint for want of prosecution.

38 The Appeal Panel cited with approval the following passage in the judgment of the President of the Court of Appeal in Fairey v Fairey (No. 2) [2001] NSWCA 173 in the context of the power that exists in every jurisdiction to summarily dismiss a complaint:

‘52 The power to dismiss proceedings summarily serves the dual purposes of ensuring fairness to litigants and preserving the integrity of the judicial system. The former purpose aims essentially to protect the litigant, in this case the respondent, from the consequences of delay, be those consequences financial, impacts on litigation, psychological or otherwise. The latter purpose, namely the integrity of the judicial system promotes the expedient resolution of cases and has some regard to the interests of litigants generally in the Court. I hasten to say that regard cannot over-reach the rights of the individual litigants to justice in their own case.’

39 The Appeal Panel noted that the power of summary dismissal should be exercised by the Tribunal with caution. In the context of the present application before the Tribunal, the decision of the Court of Appeal in Fairey contained additional paragraphs surrounding paragraph 52, which are relevant to be taken into consideration in this application. The Tribunal considers it is appropriate in the context of this application to quote the following additional paragraphs in the decision of Mason P in Fairey:

‘51 Summary dismissal of an appeal brought as of right is an extreme measure, especially in a case such as the present when past defaults are not continuing. I am troubled about the matter and the issue of whether it is proper to look at the present situation, notwithstanding the past defaults, and to reach the view, in the exercise of the discretion, that I am satisfied that the respondent should have the relief she seeks in the notice of motion.

53 Unlike an application to dismiss for want of prosecution proceedings prior to trial, this is an application made when a further trial seems most unlikely and where it is not suggested that the delay is itself likely to have any impact upon the just disposition of the present appeal. It must also be recognised that the respondent's financial situation seems to be reasonably well protected by virtue of the trust account to which I have referred.’

40 Although the decision in Crewdson is illustrative of the application of s 111(1) of the Act, as it then was, to a situation where there is a want of prosecution, that decision was delivered before the inclusion in the Act of the more specific provision of s 107(1)(b), dealing with want of prosecution. The Crewdson decision dealt with a situation where the intention of the appellant to withdraw the complaint was demonstrable.

41 Counsel for the respondent submitted that in the circumstances of the applicant’s complaints, the failure of the applicant to pursue consideration of the complaints before the Tribunal, effectively or efficiently, constituted a proper basis for the dismissal of the proceedings under s 107(1)(b) for the lack of want of prosecution.

42 In addition, it was submitted, that the summary dismissal of the complaints under s 102 was justified as the applicant was unable and incapable of pursuing his claims with the result that the respondent was denied fairness and was seriously prejudiced by the delays and the defaults of the applicant. The result was that the integrity of the judicial system was jeopardised and the complaints should be dismissed to avoid further jeopardy to that system.

43 Counsel for the applicant in her submissions did not address these issues. In relation to s 107, she submitted that the section no longer applied as it was repealed by the Administrative Decisions Tribunal Amendment Act 2008 No. 77 (Schedule 2.3[2]) which commenced on 1 January 2009 and accordingly was no longer in force at the time the Tribunal would decide the respondent’s application.

44 This submission was not correct as it overlooks cl 21 of Schedule 1, Savings and Transitional Provisions to the amending Act which states:

‘Section 107, as in force immediately before its repeal by the amending Act, continues to apply in relation to any proceedings in the Tribunal that were commenced before the repeal of that section.’

45 The result is that s 107(1)(b) continues to apply to this application.

46 In the written submissions of the applicant, counsel confined the majority of her opposition to the application by reference to the law relating to applications for dismissal on the ground that the complaints are lacking in substance. In this respect, the submissions misconstrue the nature of the application. The application is not brought on that ground but relies on a want of prosecution (s 107) and based on the history of the delays and the defaults of the applicant, that justice to the respondent and to the judicial process requires the summary dismissal of the complaints and the dismissal of the proceedings. The only paragraphs in the applicant’s written submissions that are directly relevant to the grounds on which the application is made is the following:

‘1. The substance of the respondent’s submissions is that the complaint ought to be dismissed due to delay on the part of the applicant. It is submitted that delay alone is insufficient reason to dismiss the matter, in all the circumstances, including the mental health of the applicant. It is appropriate to make some allowance for the mental health of the applicant, as the Tribunal has done to date and for the fact that for portions of the matter he has been unrepresented.

2. A document entitled Points of Claim was filed by the applicant in this matter on 16 February 2005. While it is not a document drafted by a lawyer, it does set out the substance of the claims made by the applicant in this matter. (A further document entitled Amended Points of Claim was filed by Mr Baker and subsequently disclaimed by the applicant). It is not a requirement of the jurisdiction that Points of Claim be filed, but in this case, the document filed on 16 February 2005 provides considerable detail, some of which is in the nature of affidavit evidence. The applicant has adopted as a summary of his complaints, a document prepared at a case conference on 16 February 2005. The substance of the complaint was also apparent on the face of the documents before the ADB, as found in the President’s reports. The respondent has thus been aware of the substance of the complaint for a considerable period and could have taken steps to prepare the matter on that basis. Witness statements could have been taken from those referred to in the complaints (e.g. from Mr Ken Neville, Mr Bruen Pettersson and others referred to in the Points of Claim). It that had not been attended to, that should not be held against the applicant, as that was a matter purely for the decision of the respondent.’

47 The Tribunal considers that s 107(1)(b) and s 102 in conjunction with s 92(1)(b), are not mutually exclusive. The sections can operate in harmony. Section 107 operates to dismiss proceedings specifically on the ground of want of prosecution. Section 102 applies in the same or similar circumstances where the degree of failure of the applicant to pursue the complaints results in unfairness to the respondent that causes it irreparable prejudice and that to allow the complaints to continue would fail to preserve the integrity of the judicial process.

Consideration of the application of the respondent

48 The submissions of the respondent can be summed up in statements by counsel for the respondent in comments to the Tribunal during the hearing on 20 June 2008. Counsel stated that the respondent did not direct any criticism of the applicant and in a moral sense regarded him as blameless as his medical condition caused him to be unable to complete the processes necessary to prosecute his complaints. However, in a legal sense the respondent submitted, the applicant has failed to process his complaints in a way that is consistent with justice to the respondent. The significance of the position of the respondent was illustrated to the Tribunal by reference to case law on the approach taken by courts in applications to dismiss proceedings from want of prosecution.

49 In Hoser v Hartcher [1999] NSWSC 527, the Supreme Court dealt with an application to strike out a Statement of Claim for want of prosecution by the plaintiff. In her decision, Simpson J set out a list, not intended to be exhaustive of principles relevant in the exercise of the discretion in the court to strike out for want of prosecution:

‘20 (1.) the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed: Stollznow v Calvert (1980) 2 NSWLR 749 at 751 F (Court of Appeal); Razvan v Berechet, unreported Court of Appeal, 23 February 1990; Vilo v John Fairfax and Sons Limited, unreported, 19 November 1995, per Sperling J;

21 (2.) the discretion should be exercised only in a clear case where it is manifestly warranted; Razvan, per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of the discretion: Stollznow v Calvert at 751 D;

22 (3.) any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Channel Nine Pty Limited, unreported, 16 December 1994, per Levine J;

23 (4.) personal blamelessness on the part of a plaintiff(as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow, p73.

24 (5.) a defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. A defendant has two choices: to attempt to prod the plaintiff into action, or to stand by, doing nothing, trusting that time will bring about the slow death of the action. Either choice represents something of a gamble, dependent upon future events that the defendant is unable with any degree of confidence to predict. If the defendant opts for the former course, of prodding the plaintiff into action, it may succeed in doing so, precluding an application to strike out. On the other hand, if the plaintiff remains inert, the defendant’s case for striking out strengthens with passing time. If the defendant chooses the latter option and takes no action, the plaintiff may take no further steps, or may take no further steps until such irremediable prejudice is caused to the defendant that the application to strike out will succeed; if, however, some other event galvanises the plaintiff into action the defendant, having done nothing to progress the matter, can hardly be heard to complain of the plaintiff’s earlier inactivity: Calvert v Stollznow, 1 April 1980, Ritchie’s Supreme Court Procedure, (NSW) Vol 2, para 13, 022, per Cross J (at first instance); and in the Court of Appeal per Moffitt J, p 753; Vilo, p 10; McBride v Australian Broadcasting Corporation, unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Limited, unreported 25 July 1997, per Levine J; Hart v Herron, unreported, 3 June 1993, Court of Appeal per Priestley JA;

25 (6.) delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor: Calvert v Stollznow, per Cross J; Burke v TCN. But in my view, this circumstance must be treated with some caution. The weight that can be accorded to that delay is limited. Where an action is commenced within the period provided for by an applicable statute of limitations, it would not ordinarily be appropriate to take that period into account. However, if a plaintiff has delayed significantly in the commencement of the proceedings, and that delay is followed by further lethargy in the advancement of the proceedings, the effect of the initial (but permissible) delay is compounded. The real question is not the length of the delay, but the impact that delay has upon the defendant’s capacity properly to defend the plaintiff’s claim. That will be a question of fact in each case. While there may be some prejudice presumed by reason of the passage of time, much will depend upon the nature of the proceedings, and the identification of the issues involved in the litigation. Where, for example, at the close of pleadings it can be seen that there are disputed questions of fact dependent upon the oral evidence of witnesses, or their recollections, the prejudice will plainly be greater than in cases that depend essentially upon the application of legal principle to largely undisputed facts, or upon disputed questions of fact that will be resolved by reference to documentary or other objective evidence not likely to be affected by the effluxion of time;

26 (7.) the onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise;

27 (8.) prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case: Burke, supra. Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff’s personal responsibility for the delay is an important factor as is any explanation provided for the delay;

28 (9.) what the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. A defendant who has not interviewed witnesses, taken statements or collected documents, after being served with the claim, has a less meritorious complaint about the effect of prejudice caused or presumed by reason of delay: McBride v ABC, unreported, 6 November 1998, per Levine J;

29 (10.) the plaintiff’s prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff’s case is strong (absent the kind of prejudice to the defendant to which I have referred) it is less likely that justice will be done by striking the action out: Razvan, per Kirby P;

30 (11.) the exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: Razvan, per Kirby P. The ultimate aim of a court is the attainment of justice: The State of Queensland v J L Holdings Pty Limited [1997] HCA 1; (1997) 189 CLR 146. To adapt the words of the High Court in that case, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice.’

50 Later, her Honour stated:

‘34 .... The relevant question for present purposes is whether the plaintiff has been shown to be not genuinely interested in the claim. The onus of establishing that lies upon the defendant. On the available evidence, I would not draw the inference that the plaintiff lacks commitment to the cause of action he asserts.’

51 Her Honour found that the evidence showed that both parties had been equally lethargic in pursuing their respective interests. She stated that she was not satisfied that the interests of justice would be met by striking out the Statement of Claim and she dismissed the defendant’s motion.

52 In an earlier decision of the Court of Appeal of the Federal Court – Re Lenijamar Pty Ltd; Domenico Picone and Margaret Anne Picone v AGC (Advances) Ltd [1009] FCA 520; [1990] FCA 520; 27 FCR 388 – the Court allowed an appeal against a decision dismissing proceedings for failure to observe Rule 7 of the Federal Court Rules. That Rule provided that where a party fails to comply with an order of the court directing a party to take steps in the proceedings, the other party, if an applicant, may seek an order to (inter alia) dismiss the proceedings. The Court noted that the power given by the Rule is conditional on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceedings. There being no requirement of intentional default or contumuleus conduct. Nor, it was noted, was there a requirement of inordinate and inexcusable delay nor a requirement of prejudice to the respondent.

53 The Court cited a statement of Sir Frederick Jordan in In the Will of F B Gilbert (deceased) 1946 (46 SR) (NSW) 318 at 323:

‘... I am of the opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. ...’

54 In their joint judgment, Wilcox and Gummow JJ stated:

‘36. The discretion conferred by Order 10 rule 7 is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the Judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.

37. In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the Court's directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent. But the continuance of the non-compliance is of the essence of this situation. If, when the Court looks at the matter, the direction has already been complied with, the defaulting applicant may be ordered to pay any wasted costs; but it would be difficult to justify the dismissal of the proceeding solely because of that default.’

55 Paragraph 36 of the Lenijamar decision was applied by Mason P in Fairey v Fairey (supra). Mason P was considering an appeal where the appellant had not prosecuted his appeal with due diligence under Pt 1 R. 24 under which the Court of Appeal may order that an appeal be dismissed for want of prosecution. The appellant had defaulted in a number of obligations to the court and to the respondent. Mason P found that the defaults were indicative of an attitude on the part of the appellant that ‘he will suit himself as to when and if he will comply with his obligations ...’. This was the context in which Mason P made the statements quoted in paras 38 and 39 supra.

56 In support of her submissions in this application, counsel for the respondent relied on some of the passages quoted earlier.

57 Each decision can be distinguished from the application of s 102 and s 107(1)(b) of the Act although the extracted quotations are helpful in understanding, in general terms, the approach to be adopted by the Tribunal in relation to dismissal of the applicant’s complaints.

58 The principles that the Tribunal adopts in this application are:

1. There is a distinction in considering the termination of substantive rights on the ground of want of prosecution (on the one hand) and the termination of proceedings for failure to observe a specific order of a Tribunal or court or the demonstration by a party of an attitude to suit himself as to compliance with obligations to the court or to the other party (on the other hand).

2. Summary dismissal is an extreme measure especially where the past defaults are not continuing.

3. The exercise of the power to dismiss summarily prior to trial, requires a cautious approach especially if the case of the applicant has a reasonable prospect of success.

4. The extract from the judgment of Wilcox and Gummow JJ in Lenijamar is a statement which it is appropriate to apply in considering an application for dismissal of proceedings under s 107(1)(b) of the Act. The relevant principles from that statement require consideration as to whether:

- The history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the court or the other party.

- Whatever the applicant’s state of mind, where the non-compliance is continuing and occasioning unnecessary, delay expense or other prejudice to the respondent, the cumulative effect of an applicant’s defaults may be such as to satisfy the Tribunal that the applicant is either subjectively unwilling to co-operate or for some other reason, is unable to do so.

5. These principles are also relevant in considering an application for dismissal of a complaint under s 102. In the application of this section, two additional aspects must be considered:

- The extent of any irreparable prejudice to the respondent and whether the prejudice is continuing.

- The need to maintain the integrity of the judicial process of the Tribunal.

Findings of the Tribunal

59 The Tribunal has considered the history of the events outlined earlier as to the attempts to bring the hearing of the applicant’s complaints before the Tribunal.

60 The Tribunal has considered those matters in the context of the principles to be applied in applications under s 102 and s 92(1)(b) and under s 107(1)(b) of the Act. The Tribunal summarises its conclusions on these considerations as follows:

1. The period from the time of receipt by the Tribunal of the references of the complaints from the President on 5 April 2004 to the date of the last of the written submissions in this application on 11 March 2009 – a period of approximately 5 years, is an unduly length of time for the respondent to wait for a hearing. It is noted that there will be further formalities to be completed before a hearing can be held.

2. A substantial cause of the delay is the inability of the applicant, without assistance, to cope with the processes necessary to bring his complaints to a hearing. This inability is mainly attributable to the applicant’s mental condition. Medical evidence produced to the Tribunal and the Tribunal’s own observations of the applicant at case conferences and at interlocutory proceedings, demonstrate that without assistance of a representative under s 71(4) and of legal assistance, the applicant is not able to properly progress his complaints to a hearing or to adequately present his case to the Tribunal at a hearing.

3. Following the appointment by the Tribunal of a representative on 2 September 2008 and the appointment of a solicitor and barrister to represent the applicant, the Tribunal expects that the applicant will be able to properly and adequately process his complaints and bring the complaints forward to a hearing before the Tribunal. The delays in prosecuting the complaints is not current and further delay is unlikely to arise if the applicant maintains these representations.

4. The prejudice which the respondent claims it has suffered as a result of the applicant’s delays is in two parts:

(i) The incurring of considerable cost. Counsel for the respondent estimated that to date, the legal costs of the respondent is approximately $100,000.00. No details of this estimate were given to the Tribunal which is accordingly unable to assess the accuracy of the estimate.

The Tribunal accepts that the respondent has incurred legal costs since 8 June 2005 which was the date after which the respondent has been represented by the Crown Solicitor and by counsel. It is noted that in normal circumstances a party must expect to incur a quantum of legal costs in defending allegations arising out of complaints under the Act.

(ii) The respondent supplied details, in its further submissions as to prejudice, of being deprived of a fair opportunity to obtain relevant evidence where, some six years after the applicant made his complaints to the Anti-Discrimination Board, he still has not finalised his Points of Claim. It is noted that the Points of Claim have now been filed.

The respondent points to the summons for production served on the respondent and in compliance the respondent produced eight lever arch folders of documents. These documents referred to approximately 76 persons who are potentially, witnesses and of whom 57 were or are employees of the respondent. Nineteen of the persons were never employed by the respondent. Of those who were employed by the respondent, 32 are no longer employed by the respondent and 25 persons are still employed by the respondent. It was indicated to the Tribunal that the respondent anticipated difficulties in locating those persons who are no longer in the employ of the respondent in order to obtain statements to be submitted as evidence if the complaints were to come before a hearing of the Tribunal.

The Tribunal notes that the respondent was not represented before the Tribunal prior to 8 June 2005. Any prejudice suffered by the respondent if it is unable to locate former employees who left its employ prior to that date, cannot be entirely attributable to the defaults of the applicant.

On the issue of irreparable prejudice which the respondent may have suffered and which is attributable to the failure of the applicant to properly and promptly comply with requirements of the Tribunal, the Tribunal is of the view that the prejudice referred to by the respondent in costs and in preparation of the respondent’s case for a hearing is not so material, in the circumstances as to cause the respondent to be at a serious disadvantage.

5. The circumstances of the applicant’s inability to proceed to a hearing with due diligence arises from pre-trial processes and must be considered in that context. The material filed by the applicant, and in particular the lengthy narrative document although incomplete, contains details of the allegations of unlawful discrimination and of victimisation which, if established at a hearing, has the potential to substantiate the complaints.

The Tribunal should proceed with caution, in these circumstances, in summarily dismissing the complaints.

6. On the issue of the need to ensure that the integrity of the legal processes of the Tribunal are not compromised by the delays occasioned by the applicant, the Tribunal is of the view that the failure of the applicant to observe directions of the Tribunal in a timely manner and his failure to accept the actions of his legal advisors in reducing the number of complaints to be brought before the Tribunal and subsequently in revoking the appointment of his representative and his legal advisors, is attributable to the applicant’s lack of legal skill and to his lack of understanding and comprehension, brought about by his mental condition. With the appointment of Ms Doratis as his representative and the retainer of a solicitor and counsel to assist her, these failures should not continue.

61 It is the view of the Tribunal in the exercise of its discretion under s 102 and s 107(1)(b) of the Act, and having regard to the principles applicable to this application, that the application be not granted.

62 The applicant will be entitled to proceed to a hearing of his complaints under Ms Doratis and with the support of legal representatives. If those representations should cease and the applicant is again left to proceed without representation, the Tribunal would have serious doubts that further unacceptable delays on the part of the applicant would not occur. It is imperative, in the view of the Tribunal, that the applicant maintains the support of a representative and legal advisors.
63 There is now a need for a further case conference to consider what processes should be completed to have the complaints and the respondent’s defence ready for a hearing. Accordingly, the Tribunal appoints a case conference to be held at 9.30am on 21 May 2009.