Dayton v Woolworths Limited

[2005] NSWADT 271

CITATION:	Dayton v Woolworths Limited [2005] NSWADT 271
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Christopher Dayton RESPONDENT Woolworths Limited
FILE NUMBER:	041136
HEARING DATES:	9/09/2005
SUBMISSIONS CLOSED:	09/09/2005
DATE OF DECISION:	11/25/2005
BEFORE:	Britton A - Judicial Member
APPLICATION:	Dismissal of complaint - applicant does not wish to proceed, proceedings are subject to want of prosecution or proceedings abandoned
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:
REPRESENTATION:	APPLICANT No appearance RESPONDENT No appearance
ORDERS:	Orders made 9/09/2005; Application dismissed

1 On 9 September 2005, orders were made dismissing the complaint of Christopher Dayton against his former employer, Woolworth’s Pty Ltd. Dayton seeks written reasons for that decision. These are the reasons in answer to that request.

2 On 1 May 2001 Mr Dayton lodged a complaint with the President of the Anti-Discrimination Board (respectively “the President” and “the Board”) alleging that Woolworths had discriminated against him on the ground of disability.

3 On 23 January 2004 a delegate of the President decided not to accept that part of Mr Dayton’s complaint that related to the period February 1999 until October 2001. By letter dated 3 August 2004 the Board wrote to Woolworths outlining the complaint and seeking a reply. No response was received.

4 At the request of Mr Dayton, by letter dated 6 October 2004, the President referred his complaint to the Administrative Decisions Tribunal (“the Tribunal”) under s 94(1) of the Anti-Discrimination Act 1977 (“the AD Act”).

5 A case conference was held on 24 November 2004 at which both parties were represented. With the consent of the parties, Judicial Member Rice directed that the matter be listed for a further case conference at a date to be fixed in July 2005. He noted that “[t]he parties were involved in proceedings before the Industrial Relations Commission over the same issues ( IRC 6815/03). Leave would be necessary for the matter to be heard here in the meantime. Leave is not sought at this stage.”

6 On 22 July 2005 the Registrar wrote to the parties and advised that the matter had been listed for a case conference on 10 August 2005.

7 At 4.30 pm on the day before the scheduled conference the Registrar received a letter from Mr Drayton’s solicitor requesting that the case conference be stood over for a month as the matter had settled in principle “but relatively small technical matters are preventing the finalisation of all matters”. The solicitor indicated that the respondent consented to the adjournment.

8 The adjournment was not determined before the scheduled case conference and neither party entered an appearance. While not altogether clear from the Tribunal’s file it would seem that the adjournment application was only brought to Mr Rice’s attention shortly before the case conference. A file note made by Mr Rice dated 10 August 2005 indicated that he rang the solicitor for Mr Dayton who was unavailable and left the following message with his secretary: “it is my intention to list the matter for dismissal before me on 9 September unless representations are made before hand to vacate that date”.

9 At Mr Rice’s request the Registrar wrote to the legal representatives of both parties on 10 August 2005 and advised them of the following directions:

1. the matter had been listed for dismissal on 9 September 2005; 2. that date will be vacated if and only if on or before 7 September 2005 the applicant files and serves an application for leave pursuant to s 96(2) of the Anti-Discrimination Act 1977 , and an affidavit and supporting documents in support of that.

10 No further correspondence was received from either party. The matter was listed before me on 9 September 2005 and no appearance was entered for either party. I made orders dismissing the application.

Decision

11 Section 107(1) of the AD Act provides:

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

(a) the person or (in the case of a complaint made on behalf of more than one person) each person on whose behalf the complaint was made does not wish to proceed with the complaint, or

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

(c) the proceedings have been abandoned.

(2) The provisions of this section are in addition to the provisions of section 73 (5) (g) and (h) of the Administrative Decisions Tribunal Act 1997.

12 No appearance was made for Mr Dayton on 9 September 2005. Through his solicitor he had been given notice that the matter would be listed for dismissal on that day.

13 As the matter was before the Industrial Relations Commission it could not proceed without the leave of the Tribunal. Mr Rice had made this abundantly clear to the parties from the outset. Close to ten months after this was first raised with the parties the Applicant had not provided the Tribunal with any materiel that would assist it address this point and failed to do so when directed.

14 In the circumstances of this case I am satisfied that the Tribunal provided Mr Dayton with a reasonable opportunity to prosecute his case but he failed to do so. For these reasons I moved to dismiss the application.