Docherty v The Smith Family [2011] NSWADT 26 (9 February 2011)

Last Updated: 20 June 2011

Administrative Decisions Tribunal New South Wales

Case Title:	Docherty v The Smith Family
Medium Neutral Citation:	[2011] NSWADT 26
Hearing Date(s):	12 August 2010
Decision Date:	09 February 2011
Jurisdiction:
Before:	R Perrignon, Judicial Member
Decision:	1) The Respondent's application under section 102 is dismissed, on terms that the claim is particularised in the manner set forth in these reasons, and that an order for costs is made in favour of the Respondent. 2) Orders giving effect to this decision, as set out in these reasons, will be made within fourteen days. 3) Grant leave to the parties to file and serve written submissions on proposed order no 7 (as to costs) within fourteen days.
Catchwords:	DISCRIMINATION - on grounds of disability and carer's responsibilities - application to dismiss claim - want of prosecution - repeated failure to comply with orders of Tribunal
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5 Fei v Director-General, Dept of Commerce (State of NSW) (No2) [2009] NSWADT 109 Hoser v Hartcher [1999] NSWSC 527 MT v AA (No 2) EOD [2010] NSWADTAP 28 O'Sullivan v NSW Medical Board (No 2) [2010] NSWADT 188 Rae v Commissioner of Police, New South Wales Police Force (No 2) [2010] NSWADT 36 Tu v University of Sydney (No. 2) [2002] NSWADTAP 25 Haas v Hosking (No 2) [2010] NSWADT 203
Texts Cited:
Category:	Principal judgment
Parties:	Sharon Docherty (Applicant) The Smith Family (Respondent)
Representation
- Counsel:	K Nomchong (Respondent)
- Solicitors:	S Docherty (Applicant - in person)
File number(s):	091088
Publication Restriction:

Judgment

REASONS FOR DECISION

1. The Respondent applies for an order dismissing the proceedings for want of prosecution, pursuant to section 102 of the Anti-Discrimination Act 1977 ('the Act'), by reason of the Applicant's repeated failure to comply with the orders of the Tribunal.

2. This is the second formal application by the Respondent for summary dismissal. The first such application was dismissed on 31 March 2010. The reasons are set out below. The Respondent submits that the power to dismiss should be exercised on this occasion, for the following reasons.

1) Ms Docherty has repeatedly failed to comply with the Tribunal's orders, without reasonable excuse.

2) On each occasion, she has alleged that delay was caused by the actions or inactions of her solicitors, her own impecuniosity or family illness, without providing any convincing evidence of it.

3) Her repeated failures to comply with the Tribunal's orders have caused serious prejudice to the Respondent's ability to meet the complaint. There are no Points of Claim for it to answer, or which would enable it to meet the Applicant's claim. It is a charitable institution, many of whose workers are volunteers. The complaint period goes back to July 2007, and a number of crucial witnesses have left their employment with The Smith Family. They may or may not now be available to assist.

4) Because of the general rule that costs do not automatically follow the event, the Respondent's chances of obtaining costs orders from which it might recoup its costs thrown away by the Applicant's repeated breaches of the Tribunal's orders is slight.

3. For her part, the Applicant says the matter should proceed to a hearing. Despite the absence of Points of Claim, she says that her claim is a straightforward one. She says she was discriminated against by her employer on the grounds of disability and of her responsibility to care for her daughter, who suffered from a blood disease. Her disability was a tendency to migraine headaches. She says she was treated less favourably than other employees of The Smith Family, because she was required to comply with conditions as to sick leave which others were not. Those conditions were set forth in two letters dated 8 September 2008 and 16 December 2008 respectively. Employees who were not required to comply with the conditions were Sandra Ham, Natalie Sevim, Lynette Bolt, Deon Ngatai and Peter McInness. She expects to obtain statements from the first three, but not from the others.

4. For her delay, Ms Docherty blames her solicitors, her lack of funds (which prevents her from retaining other solicitors), a death in the family, which has recently necessitated her travelling to her native Scotland, and other family issues. She says that her most recent failure to comply with orders to file and serve Points of Claim by 8 June 2010 was due to the fact that settlement negotiations were underway. In a letter to the Tribunal, she also says she was unaware until a short time before the hearing of correspondence from the Respondent's solicitors left in her mailbox while she was overseas.

5. She tells the Tribunal that she did not previously instruct her solicitors to obtain statements from the witnesses named in the preceding paragraph, because she only became aware of the Respondent's more favourable treatment of them about three and half months ago.

6. Even then, she did not instruct her solicitors to obtain statements from them. She offers no explanation, save that she did not previously think she was at such a critical point as she is now.

Legislation

7. Section 102 provides:

'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 a complaint under section 92 (1) (a) (i) or (ii) or (b).'

8. Section 92(1) of the Act provides:

'(1) If at any stage of the President's investigation of a complaint:

(a) the President is satisfied that:

(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

(iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

(iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

(v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or

(vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

(vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, 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.'

9. Subsection 92(1)(b), when read with section 102, empowers the Tribunal to dismiss an application for want of prosecution, evidenced by a repeated failure to comply with its orders. As the Appeal Panel observed in Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5, when construing section 111(1) of the Act, which was the predecessor to section 102:

'36 The language and 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 co-operate with the Tribunal and the Respondents in having the matter ready for hearing within an acceptable time, the complaint may nonetheless be dismissed.'

10. The power to dismiss must be exercised with caution. As Chesterman DP observed in Rae v Commissioner of Police, New South Wales Police Force (No 2) [2010] NSWADT 36:

'84 It is established by a long line of decisions of the Appeal Panel and the Equal Opportunity Division of this Tribunal that the power to dismiss a complaint summarily under section 102 of the AD Act should be exercised 'with exceptional caution and only if the circumstances clearly warrant such action' (see e.g. Sullivan v State of NSW (NSW Police Force) [2009] NSWADT 2 at [15] and the cases cited in that paragraph). It is established also that the need for caution is 'even more apparent' when, as in the present case, an application for dismissal has been made before the complainant's evidence has been adduced at the substantive hearing (see e.g. Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16 at [34]). In such a case, the Tribunal must assume that the complainant's case can be established by evidence - i.e., that his or her allegations must be taken 'at their highest' (see e.g. Razaghi v Director-General, NSW Department of Health & Anor [2001] NSWADT 4 at [10]).'

11. In this case - as in any case in which an application for summary dismissal is made prior to hearing - the Applicant's evidence has not yet been adduced at a hearing. In determining whether the application for summary dismissal ought succeed, it is appropriate to assume that the Applicant's case can be supported by evidence. To determine whether the power of dismissal ought be exercised, it is necessary to have regard to the nature and history of the defaults of which complaint is made, and to consider their significance, both for the Respondent, and for the past and future conduct of the proceedings.

History

12. On 4 March 2009, Ms Docherty complained to the Anti-Discrimination Board that she had been discriminated against by her employer, The Smith Family, on the grounds of disability and her responsibility to care for her daughter.

13. On 31 July 2009, the complaint was referred to the Tribunal for determination under section 93C of the Act. The subsequent history was set forth in the Tribunal's reasons, delivered ex tempore on 31 March 2010, dismissing the Respondent's first application for summary dismissal. It is convenient to set out the terms of that decision:

'The Respondent, The Smith Family, seeks dismissal of these proceedings pursuant to section 102 of the Anti-Discrimination Act 1977 . It relies on Ms Docherty's failure to comply with the Tribunal's orders on the following two occasions.

1) At case conference on 16 September 2009, the Tribunal ordered the Applicant to file and serve witness statements, any other relevant documents on which she relied, Points of Claim and a statement and evidence of loss and damage by 4 November 2009. Ms Docherty failed to do so, or to notify the Tribunal of that failure and seek an extension of time.

2) At a further case conference on 16 December 2009, the Tribunal indicated that it was not satisfied with her explanation for delay, and reminded her that the onus was upon her to comply with its orders. It ordered that Points of Claim and witness statements be filed by 20 January 2010. Once more, the Applicant failed to comply with the orders.

Ms Docherty's failure continued until a further case conference was convened on 3 March 2010. On that occasion, the Respondent indicated that it wished to apply for dismissal of the proceedings. That application has been listed for hearing and heard today [31 March 2010]. The Applicant has appeared by telephone, with the Respondent's consent

On 24 March 2010, about a week before the hearing of this application, the Applicant filed a document headed "Points of Claim', three witness statements, and some correspondence upon which she intends to rely. The witness statements essentially go to the question of damage, rather than liability. There is no statement from the Applicant herself.

The Respondent complains, and the Tribunal accepts, that the Points of Claim and accompanying documents do not specify her complaints sufficiently to enable it to meet them at the hearing. It says, in essence, that the Applicant's failure to comply with the Tribunal's directions continues.

Ms Docherty said that she had no legal training, and did not understand the meaning of the initial orders. On 2 October 2009, she left Australia for overseas, and did not return until 22 December 2009. Before leaving, she gave to her solicitors the names and email addresses of a number of potential witnesses, with instructions to contact them and obtain witness statements from them. She did not make enquiries as to progress while she was overseas. Once overseas, she became aware that her godmother had passed away on 1 October.

Early in January 2010, she spoke with her solicitor, who told her that everything was going well. In mid-January, she received a letter from him, indicating that he would no longer represent her. At that point, she says, she became aware that the orders of the Tribunal had not been complied with.

She was advised by a friend to find another solicitor, but found herself unable to do so, as she could not afford one. She attended a Legal Centre at Marrickville. An officer there explained to her the meaning of the Tribunal's orders, and told her what she had to do. She started to get everything ready for the hearing.

Despite that, nothing had been filed by the time of the third case conference in March 2010. It was not until 24 March 2010 that the documents described were filed and served. Ms Docherty explained:

1) that she made no complaint other than complaints of discrimination on the grounds of disability and carer's responsibilities;

2) that the basis of her claim for disability discrimination was that she was being treated differently from other employees in relation to her sick leave, which she had taken due to her migraine headaches,

3) that the basis of her claim for carer's responsibilities discrimination was that on one occasion, she was criticised for taking too much sick leave, after she had taken a few days off to care for her daughter who suffered from the blood disorder, 'Isoimmune thrombocytopaenia',

4) that she was in a position promptly to obtain, file and serve medical evidence of the existence of both disorders,

5) that she could not afford legal representation, and lacked the legal expertise to draft Points of Claim,

6) that she intended to rely solely on her written complaint to the Anti-Discrimination Board as her witness statement, and

7) that her attempts to obtain witness statements from the Respondent's employees had been met with the excuse that the employer declined to permit it.

The latter assertion was denied by the Respondent. The Tribunal is not in a position to adjudicate that matter in the absence of evidence.

Ms Docherty applied to amend her Points of Claim by adding to them the following.

'Notwithstanding anything in these Points of Claim:

1) My claim of discrimination on the grounds of carer's responsibilities is based solely on the communication to me by Carla Demos in early July 2008, that I was taking too many days off work, in circumstances when she knew that I had taken a few days off work to care for my daughter who needed care by reason of her blood disorder.

2) My claim of discrimination on the grounds of disability is based solely on:

a) 13 out of 17 meetings between myself and management between 29 July 2008 and January 2009, in which I was criticised for taking too much sick leave, which I took due to the disability of migraine headaches;

b) the issue of numerous written warnings to me concerning my sick leave, and

c) my being made to do the work of two or more people throughout that period by my supervisor.

I make no other claim in these proceedings.'

Ms Docherty's application to amend has been granted without objection. The Points of Claim will stand amended accordingly.

The grounds upon which the Tribunal may dismiss proceedings under section 102 include those specified in section 91(1)(b) - namely, if it is 'satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint'. In Crewdson v Niland (EOD) [2002] NSWADTAP 5, the Appeal Panel construed section 111, which was the predecessor to section 91(1)(b). It found that the words 'for any reason' could include a failure diligently to prosecute a complaint, at least where the complainant 'has demonstrated an unwillingness or an inability to co-operate with the Tribunal and the Respondents in having the matter ready for hearing within an acceptable time'. It referred to the policy considerations enunciated by the Court of Appeal in Fairy v Fairey (No 2) [2001] NSWCA 173.

The principles relevant to a Court's discretion to strike out a matter for want of prosecution were set forth in Hoser v Hartcher [1999] NSWSC 527 at 20-34. These are relevant to the exercise of the Tribunal's discretion under section 91(1)(b): Fei v Director-General, Dept of Commerce (State of NSW) (No2) [2009] NSWADT 109. They include the principles that summary dismissal is an extreme measure, particularly where past defaults are not continuing; that summary dismissal prior to trial requires a cautious approach, especially if the applicant has reasonable prospects of success; that the decision-maker should consider whether the history of non-compliance indicates an inability or unwillingness to co-operate with the court or the other party; the extent of any irreparable prejudice to the Respondent, and the need to maintain the judicial process of the Tribunal.

The Tribunal has regard to each of these factors. It has also has considered the explanations made by the Applicant for her failure to comply with its directions on two occasions. It is not satisfied that those explanations excuse the conduct of the Applicant, at least until January 2010, when she ceased to be represented. There is little evidence that the Applicant took any real interest in prosecuting the proceedings because, beyond leaving her solicitor with initial instructions, there is no evidence that she took any active interest in compliance with the Tribunal's orders until after the third case conference, even though the meaning of the orders was explained to her beforehand at the Marrickville Legal Centre.

The Tribunal is satisfied that the Applicant has demonstrated an 'unwillingness or an inability to co-operate with the Tribunal and the Respondents in having the matter ready for hearing within an acceptable time'.

However, since the third case conference on 3 March 2010, the Applicant has filed and served documents in partial compliance with the Tribunal's orders. Though her Points of Claim are deficient, in that they fail adequately to alert the Respondent to her case, the Tribunal accepts that she has done her best to draft them without legal advice. The witness statements served, so far as they go, comply with the orders belatedly, but contain nothing on liability. For that reason, the Defendant remains in the dark as to the case it has to meet.

The Points of Claim, as amended today, however, confine her case within defined limits, and go a considerable way to alerting the Respondent to the general nature of that case. They are not, it is true, in a state which one would expect if drawn by a legal representative, but in the circumstances, the Tribunal considers them sufficient to avoid any undue or irreparable prejudice to the Respondent.

The absence of witness statements on liability is one which may be considered at trial as to whether the Plaintiff has made out her case. She has been informed by the Tribunal that, unless medical evidence is forthcoming, she runs the risk that she will have failed to prove her medical case. She is similarly warned that, without appropriate witness statements, she may fail to prove her case on liability.

As she cannot obtain witness statements from critical employees of the Respondent, she has been informed that she may approach the Registrar to issue summonses for their attendance at trial. As long as the Respondent is aware of which employees are to be called, it may if it wishes conduct interviews with them, and know the evidence they are likely to give. It may decide to call them itself.

The Tribunal is not in a position to adjudicate the claim at this stage, in the absence of evidence. It cannot be satisfied that the claim, on its face, has no reasonable prospects of success. It is not in a position properly to assess those prospects.

On consideration of all the issues, and of the facts before it, the Tribunal is not satisfied that dismissal of the claim is warranted at this stage. However, in fairness to the Respondent, it is appropriate that the matter be given a hearing date, and that certain further orders be made for its conduct.

The Respondent seeks self-executing orders dismissing the claim in the event of non-compliance. The Tribunal is not minded to make self-executing orders in this case. It makes the following orders:

1) Respondent's Application under section 102 of the Anti-Discrimination Act 1977 dismissed.

2) Grant leave to the Applicant to approach the Registrar within 14 days to issue summonses for the attendance of witnesses.

3) Grant leave to the Applicant to rely on her complaint to the Anti-Discrimination Board at the hearing, as if it had been filed and served.

4) Order the Applicant to file and serve any other documentary evidence, including witness statements, including her own statement if she intends to rely on one, and any medical reports, by 28 April 2010.

5) Order the Respondent to file and serve by 26 May 2010 its Points of Defence, witness statements and any other evidence on which it intends to rely.

6) Matter fixed for hearing on 9, 10, 11 and 15 June 2010, with an estimate of four days.

7) Direct the Applicant to attend the hearing in person, with her witnesses, if any.'

14. By April 2010, the Applicant had retained new solicitors. On 28 April, they served new Points of Claim, an affidavit of the Applicant and submissions in support. The documents were filed subsequently. The Points of Claim enlarged the scope of the proceedings well beyond the scope of the amended Points of Claim considered by the Tribunal on 31 March, on the basis of which it had declined an order for summary dismissal. Correspondence sent by the Respondent's solicitors was to no avail. The Applicant's new solicitors insisted on prosecuting the claim as enlarged. At case conference on 29 April 2010, objection was taken to the enlarged Points of Claim, and the matter was referred back to me for consideration.

15. A directions hearing was held on 25 May 2010, at which the Applicant was represented by counsel. The Tribunal heard that the Applicant's solicitors had not been told by their client of the orders made on 31 March 2010. As the Applicant was now represented, and there was a real prospect that her claim would properly be pleaded and agitated, leave was granted to withdraw Points of Claim filed to date, and to replace them with Amended Points of Claim by 8 June 2010, particularising each act or omission on which the Applicant relied to prove each ground of discrimination, whether in each case the claim was for direct or indirect discrimination, and naming the comparators, where relevant.

16. By 9 June 2010, the Applicant had filed nothing further. The orders of 25 May had not been complied with. On 21 June, the Applicant's solicitors ceased to act for her, filing a notice to that effect with the Tribunal. This was the second time that a firm of solicitors had done so. The first occasion was on 4 November 2009, when it was clear that the Applicant was not going to comply with the orders to file and serve documents by 4 November 2009, made at case conference on 16 September 2009.

17. At case conference on 30 June 2010, the Respondent applied again for summary dismissal. Its application was later filed in written form, and forms the basis of the present application.

18. The day after this application was heard, the Respondent filed an affidavit, apparently without the Applicant's consent, purporting to show that the Applicant had lied to the Tribunal by saying that she had spoken with a certain witness. It sought to re-open its case and allow the Applicant an opportunity to respond. It has been unnecessary to consider the affidavit, as its contents, even if accepted, would not satisfy me that the Applicant had lied in that respect. Even if I were so satisfied, it would not affect the outcome of this application because, as will appear below, a finding against credit has already been made in respect of another issue.

19. At present, there are no pleadings on foot. The Respondent complains, not unreasonably, that it still does not know the case it has to meet, despite numerous case conferences and orders made for that purpose, among others, since the complaint was referred to the Tribunal on 31 July 2009. It recites in detail the many defaults in compliance with the Tribunal's orders to date, and relies on the submissions summarised at the commencement of these reasons. The Applicant relies on the submissions summarised at the beginning of these reasons. Where she is unable to explain her most recent default, she says was not previously aware that she was at such a critical point as now.

20. That latter excuse cannot be accepted as truthful. Ms Docherty was present by telephone on 31 March 2010, when the Tribunal was considering an application to dismiss her claim, for failure to comply with the Tribunal's orders. It was made clear to her that the application was one for dismissal of the proceedings. I am satisfied that her statement to the Tribunal on this occasion was untrue to her knowledge, and that it was designed, as a desperate measure, to avoid the consequences of her continuing defaults. As I have made an adverse finding on credit, it is appropriate that the substantive issues should ultimately be determined by the Tribunal differently constituted.

21. Despite the finding on credit, the power to dismiss must be exercised with caution. It is neither possible nor desirable to assess the Applicant's likelihood of success in the absence of any evidence apart from her existing statement. Though far from satisfied of its strength, I cannot be satisfied that the claim is without any possible foundation. Ms Docherty has particularised her claim before the Tribunal in the manner set forth in paragraph 3 of these reasons. If that is the ambit of the claim, there is no longer any need for Points of Claim. The history demonstrates that orders to file them would be futile in any event, and productive only of further unnecessary costs and delay, because the Applicant is either unable or unwilling to co-operate with the Tribunal. That finding might justify summary dismissal in certain circumstances, but in the circumstances of this case as I have outlined it, it does not compel dismissal. The only further evidence foreshadowed are statements from three of the employees named above. If they are not filed and served within the time limited by the Tribunal's orders, Ms Docherty faces the prospect that she will not be entitled to rely on them at hearing.

22. Should the claim proceed and fail, the Applicant runs the considerable risk that she will be ordered to pay the Respondent's costs of the entire proceedings.

23. I am satisfied that the Respondent has been seriously prejudiced by Ms Docherty's repeated failure to comply with the Tribunal's directions. The Respondent has been provided with conflicting versions of the case it has to meet, aptly described in its submissions as 'shifting sands'. The repeated applications for dismissal, necessitated by Ms Docherty's failures, have unnecessarily consumed its resources, and the resources of the Tribunal.

24. I am not persuaded, however, that the prejudice occasioned by Ms Docherty's defaults is irreparable, or that it cannot be met by an order for costs thrown away by them. Though costs do not automatically follow the event, section 110 of the Act now permits the Tribunal to make costs orders wherever it considers it fair to do so, having regard to the factors set forth in section 88 of the Administrative Decisions Tribunal Act 1997 . The old rule that costs orders in the Equal Opportunity Division were only granted where an abuse of process was demonstrated (see Tu v University of Sydney (No. 2) [2002] NSWADTAP 25 at [42]) has been superseded by legislative amendment: MT v AA (No 2) EOD [2010] NSWADTAP 28; O'Sullivan v NSW Medical Board (No 2) [2010] NSWADT 188; Haas v Hosking (No 2) [2010] NSWADT 203. If the Tribunal were inclined to dismiss the Respondent's application, it would be appropriate to do so on terms that, among other things, the Applicant meet the Respondent's costs of its repeated applications for dismissal, and its costs thrown away by the repeated failures to comply with the Tribunal's directions.

25. It remains to consider whether, having regard to all the circumstances, the Tribunal ought be persuaded to dismiss the proceedings. On the one hand, the Applicant has failed repeatedly to comply with the Tribunal's orders, in a way which has caused serious prejudice, unnecessary costs and substantial delay to the Respondent, and has unnecessarily diverted the resources of the Tribunal and frustrated its process. The Tribunal is satisfied that, in at least one respect mentioned above, her explanation for delay was false. It cannot be satisfied that the other explanations put forward by the Applicant have been true. It is not satisfied that her attempts to explain the defaults were reasonable, even if true. In particular, it does not accept that it was reasonable for her to fail to file Points of Claim by 8 June 2010 or at all in compliance with the orders of 25 May 2010, because settlement negotiations were underway. Nor does it accept that her late discovery of correspondence from the Respondent excuses her failure to comply with those orders, which were made in the presence of her legal advisers.

26. On the other hand, the Tribunal is not satisfied that the prejudice to the Respondent is irreparable, as it submits. The evidence does not establish that any particular defence witness likely to be required is now uncontactable, or otherwise unavailable to the Respondent. If the claim is confined as described in paragraph 3 of these reasons, the need for Points of Claim and Points of Defence would be dispensed with, the Respondent would know fairly the case it has to meet, and it should be in a position - whether or not Ms Docherty provides statements of the further three witnesses foreshadowed - to present that case at hearing.

27. Nor is it correct to say that an order for costs is so unlikely as to deprive the Respondent of any possible redress. The question of costs as a possible remedy for the prejudice occasioned to the Respondent was raised in its submissions, and again by the Tribunal in oral argument. On questioning by the Tribunal, the Respondent repeated its assertion that an order for costs was so unlikely as to render its value nugatory. The Applicant made no submissions on the issue. Nevertheless, she will be afforded an opportunity to make submissions on the nature of any costs order to be made.

28. The Applicant has unnecessarily disadvantaged the Respondent by failing to comply with its directions without reasonable excuse, and has unreasonably prolonged the time taken to complete the proceedings. For those reasons I am satisfied that it is 'fair' to make a costs order in favour of the Respondent, on the grounds set forth in section 88 of the Administrative Decisions Tribunal Act 1997 .

29. Weighing these factors, including the availability of an order for costs to compensate the Respondent for the prejudice it has suffered, together with the principle that the dismissal power should be exercised with 'exceptional caution', I am not minded to dismiss the claim at this stage, provided that it is particularised in the manner set forth below, so as to avoid further prejudice and delay.

Determination

30. For these reasons, the Respondent's application under section 102 is dismissed, on terms that the claim is particularised in the manner set forth in these reasons, and that an order for costs be made in favour of the Respondent.

Orders

31. Orders giving effect to this decision will be made within 14 days. The form of the orders proposed is indicated below. I grant leave to the parties to file and serve written submissions on the form of proposed order no. 7 within fourteen days of publication of these reasons.

1) Respondent's application for summary dismissal is dismissed.

2) Points of Claim and Points of Defence are dispensed with.

3) The complaint to be determined by the Tribunal is particularised as one of direct discrimination on the grounds of disability and carer's responsibilities in contravention of sections 49D(2) and 49V(2) respectively, on the basis that the Applicant was treated less favourably than each or any of the five employees named in the paragraph 3 of the Tribunal's reasons, by reason of conditions imposed in respect of her sick leave by letters dated 8 September 2008 and 16 December 2008. The relevant disability, if any, is the Applicant's tendency to suffer migraine headaches. Her relevant responsibility, if any, was to care for her daughter.

4) The Applicant is to file and serve within twenty-one days any further documentary evidence on which she intends to rely, including witness statements and medical reports.

5) The Respondent is to file and serve any documentary evidence on which it intends to rely, including witness statements and medical reports, within a further twenty-one days.

6) The Registrar is requested to list the proceedings for three days' hearing before the Tribunal, differently constituted.

7) The Applicant is to pay, as agreed or assessed:

a) the Respondent's costs of its applications for summary dismissal heard on 31 March 2010 and 12 August 2010, and

b) the Respondent's costs thrown away by the Applicant's failures to comply with the Tribunal's orders of 16 September 2009, 16 December 2090, 31 March 2010, and 25 May 2010,

and in default of agreement I grant leave to the parties to proceed immediately to assessment.

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