Sullivan v State of NSW (NSW Police Force) [2009] NSWADT 2 (7 January 2009)

Last Updated: 15 January 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Sullivan v State of NSW (NSW Police Force) [2009] NSWADT 2


DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
FIRST APPLICANT
Gary Sullivan

SECOND APPLICANT
Janelle Walker

RESPONDENT
State of NSW (NSW Police Force)




FILE NUMBERS:
071083
071084
071085
071127

HEARING DATES:
21 October 2008

SUBMISSIONS CLOSED:
21 October 2008



DATE OF DECISION:
7 January 2009

BEFORE:
Britton A - Deputy President





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997

CASES CITED:
Bassili v Star City Pty Ltd [2008] NSWADT 62;
Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16;
Dayton v Woolworths Limited [2005] NSWADT 271;
Han v NSW Department of Health [2006] NSWADT 113; Harding v Vice Chancellor, University of NSW [2003] NSWADT 74;
Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13;
Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179;
Karekar v TAFE Commission of New South Wales [2000] NSWADT 187;
Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59;
Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73;
Razaghi v Director General, Department of Health & anor [2005] NSWADT 202;
Razaghi v Director-General, NSW Department of Health & anor [2002] NSWADT 4;
Salama v Qantas Airways Ltd [2002] NSWADT 119;
Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221;
Tannock v State of New South Wales [1999] NSWADT 73;

TEXTS CITED:


APPLICATION:
Dismissal of complaint-proceedings are subject to want of prosecution

MATTER FOR DECISION:



REPRESENTATION:
APPLICANTS
No appearance
RESPONDENT
P Ginters, barrister


ORDERS:
Proceedings 071083, 071084, 071085 and 071127 are dismissed under section 107(1)(b) of the Anti-Discrimination Act 1977.


Reasons for Decision:

REASONS FOR DECISION

1 The respondent, the State of NSW (Commissioner of NSW Police), applies for an order dismissing these proceedings. The Commissioner contends that this action is appropriate because the applicants have repeatedly failed both to comply with directions made by the Tribunal and to prosecute their complaints.

2 On 2 September 2008 the Tribunal listed the Commissioner’s application hearing on 21 October 2008 and invited the parties to make written submissions.

3 The respondent was represented at that hearing and provided the Tribunal with written submissions. Neither applicant attended or provided an explanation for their non-attendance. Nor did they provide written submissions. Being satisfied that both applicants had been notified of the proceedings, I decided to hear the application on an ex parte basis.

Background

4 Throughout the period, June 2005 to May 2007, the applicants lodged a number of complaints with the President of the Anti-Discrimination Board alleging victimisation and/or race discrimination. Four were referred to the Tribunal by the President by letter dated 3 August 2007 (Complaints 2005/0470, 2005/0471, 2006/0152 and 2006/0153 - ADT files 071084, 071085 and 071083). The President referred additional complaints by letter dated 22 November 2007 (Complaints 2007/0194 and 2007/0390 - ADT file 071127).

5 On 3 October 2007, the applicants' application for leave to proceed with their victimisation complaints was listed for hearing before the Tribunal. The applicants did not attend. The Tribunal decided to determine the matter on the papers and directed the parties to file written submissions. None were received from the applicants.

6 The proceedings were then listed for Case Conference on 30 January 2008. All parties attended. By consent, the complaints were referred to mediation on 31 March 2008. The Tribunal ordered that the applicants provide the Commissioner’s legal representatives with an outline of what they would be seeking at mediation. On 15 February 2008, the respondent’s solicitor, Mr Brett Davies, wrote to the applicants reminding them of the orders made on 30 January 2008 and requesting an outline of the outcome sought at mediation. No response was received to that letter.

7 The mediation was listed to commence at 10 am. The applicants did not attend until noon after being contacted by the Registrar. Settlement was not reached and the matter was listed for a further Case Conference on 16 April 2008.

8 The applicants did not attend that Case Conference. The Registrar attempted to contact the applicants by phone without success. Being satisfied that the applicants had been notified of the Case Conference, Presiding Member, Deputy President Hennessey ordered that the applicants file and serve Points of Claim by 14 May 2008 and listed the matter for a further Case Conference on that date. The Registrar notified the applicants of those orders by letter, dated 17 April 2008.

9 On the morning of 14 May 2008, Ms Walker phoned a member of the Registry staff and advised that she was unable to attend the Case Conference listed for that day because of a medical problem. That Case Conference was vacated and re-listed for 28 May 2008.

10 The applicants attended the 28 May Case Conference. They informed the Tribunal that they had instructed Ms Tamara Sims, a pro bono solicitor, and had also approached the Public Interest Law Clearing House (‘PILCH’) to obtain representation. The Tribunal requested the applicants to ask Ms Sims to file a Notice of Appearance and to serve the respondent with a copy of it. By consent, the proceedings were listed for further Case Conference on 3 September 2008.

11 On 29 August 2008 the respondent filed an application for dismissal of the proceedings together with a supporting affidavit prepared by Mr Davies. Mr Davies deposed that he contacted Ms Sims on 11 June 2008 as a Notice of Appearance had not been filed and was advised that she did not act for the applicants and had referred them to PILCH. He then contacted PILCH and was advised that the applicants’ request for representation was being assessed. On 28 August 2008 Mr Davies again contacted PILCH and was advised that it would not be acting for the applicants.

12 Following receipt of the respondent’s dismissal application, the Tribunal vacated the 3 September Case Conference and listed that application for hearing on 21 October 2008. On 2 September 2008 the Registrar wrote to the applicants advising them of those orders. The respondent’s legal representatives informed the Tribunal that a copy of the dismissal application and submissions in support had been sent to the applicants.

13 As noted, the applicants did not attend the 21 October 2008 hearing or provide written submissions.

Power to dismiss a complaint

14 Section 107(1)(b) of the Anti-Discrimination Act 1977 provides that the Tribunal may dismiss proceedings before it relating to a complaint if satisfied that the proceedings are subject to a want of prosecution. The respondent’s dismissal application is made under this provision.

15 The power to dismiss a complaint summarily under section 102 of the Anti-Discrimination Act (formerly section 111(1)) has been the subject of extensive consideration by this Tribunal. A long line of authority within the Tribunal has endorsed the proposition that the power to dismiss a complaint summarily should be exercised with exceptional caution and only if the circumstances clearly warrant such action. (See Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16; Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73; Tannock v State of New South Wales [1999] NSWADT 73; Karekar v TAFE Commission of New South Wales [2000] NSWADT 187; Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221; Salama v Qantas Airways Ltd [2002] NSWADT 119; Razaghi v Director-General, NSW Department of Health & anor [2002] NSWADT 4; Harding v Vice Chancellor, University of NSW [2003] NSWADT 74; Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59; Razaghi v Director General, Department of Health & anor [2005] NSWADT 202; Han v NSW Department of Health [2006] NSWADT 113; Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13; Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179; Bassili v Star City Pty Ltd [2008] NSWADT 62.)

16 In my view, consistent with the approach taken to dismissing a complaint for any of the grounds set out under section 102 (frivolous, vexatious, misconceived or lacking in substance etc), a cautious approach should also be adopted to the exercise of the power to dismiss a complaint under section 107 on the ground of want of prosecution.

17 Section 107(1)(b) gives the Tribunal a broad discretionary power to dismiss a complaint. In deciding whether to exercise that power, the Tribunal must undertake a two-step process. First, the Tribunal must be satisfied that the proceedings are subject to a want of prosecution. Given the consequences that flow from the exercise of the power to dismiss a complaint there must be firm evidence that an applicant has failed to prosecute their complaint/s. A single default, for example, would generally be insufficient. Once satisfied that the proceedings are subject to a want of prosecution, the Tribunal may proceed to the second step and determine whether, having regard to all relevant factors, the discretion to dismiss the complaints should be exercised.

18 In these proceedings the applicants have repeatedly failed to comply with directions made by the Tribunal or to provide any explanation for their non-compliance. On three separate occasions they failed to attend Case Conferences or hearings listed by the Tribunal. In respect of the mediation, half the allocated time had passed before the applicants attended, only after being contacted by the Registrar and urged to do so. Having examined the Tribunal’s file, I am satisfied that on all occasions the applicants had been properly notified of the listed event.

19 The applicants have been provided with multiple opportunities to progress their complaints in the Tribunal. This is not a case of a party who because of oversight, illness or misadventure failed to comply with a direction of the Tribunal but rather of an unexplained pattern of dilatory conduct over an extended period.

20 The applicants were notified of the respondent’s dismissal application and the hearing to determine that application. They made no attempt to resist that application and did not attend the hearing.

21 Having regard to the history of the proceedings, the only conclusion I can draw is that they have been subject to want of prosecution.

22 Being satisfied that the pre-condition to the exercise of the power to dismiss a complaint/s under section 107(1)(b) has been established it is necessary to consider whether that power should be exercised. In making that decision, the future conduct of the proceedings is relevant. Where a party provides the Tribunal with a credible and satisfactory assurance that their defaulting conduct will not be repeated, this will be a relevant factor in deciding whether the discretionary power to dismiss should be exercised. In this matter there is nothing before me, which might indicate that if the proceedings were allowed to continue that the applicants’ conduct which gave rise to the dismissal application will not be repeated. Indeed, on what is before me it is possible that they have decided to abandon their complaints.

23 Also relevant to the exercise of the power is any prejudice to the parties if the proceedings are/are not dismissed. It goes without saying that the applicants repeated non-attendance and non-compliance with directions have caused the respondent to bear unnecessary costs. As stated above, there is nothing before me to indicate that this conduct will not continue. In a jurisdiction where costs are not general recoverable it would, in my view, be unfair to the respondent to allow this situation to continue.

24 Conversely, the applicants will be prejudiced if the proceedings are dismissed. They will be deprived of the opportunity to have their wide-ranging complaints against the NSW Police determined on the merits.

25 While a cautious approach must be taken to exercising the power to dismiss a complaint for want of prosecution in my view, the circumstances of this matter warrant the exercise of that power. In making that decision, I am mindful of the prejudice to the applicants. However, in the absence of any assurance that their defaulting conduct will not continue, coupled with the prejudice that will be suffered by the respondent if it continues, I have decided that is appropriate to exercise the power to dismiss these proceedings.

Orders

Proceedings 071083, 071084, 071085 and 071127 are dismissed under section 107(1)(b) of the Anti-Discrimination Act 1977.