Out of time discrimination appeal dismissed with costs

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Out of time discrimination appeal dismissed with costs

See: http://www.agd.nsw.gov.au/adtjudgments/2003nswadt.nsf/f1a6baff573a075dca256862002912ec/dff90593f29b2491ca256d47007df4eb?OpenDocumentLupevo Pty Limited & Ors v Bree (EOD) [2003] NSWADTAP 18 - (Hennessy DP, Innes - Judicial Member, Nemeth de Bikal - Member) 18 June 2003.

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The NSW Administrative Appeals Panel has refused to allow an application to extend time for lodging an appeal. 

The appeal, on the quantum of damages and costs awarded by the Equal Opportunity Division of the Tribunal for unlawful discrimination in the sum of $16,956 plus costs, was lodged three days out of time.

After consideration of the relevant principles to be applied when considering whether to exercise the discretion the Appeal Panel was of the opinion that the extension should be refused and costs awarded to the employee.

The Appeal Panel noted that prima facie, proceedings commenced outside the prescribed period will not be entertained, and an extension only granted if it is proper to do so. The fact that the employer had been refused an extension of time in related proceedings was relevant to the consideration. 

In addition, the tribunal had given express notice of the time for lodging the appeal, and the employer provided no 'reasonable explanation' for the delay.

Background

The tribunal handed down its decision on 11 March, 2003 and the employer and employee were furnished with reasons on 14 March, 2003. The last date for lodging the appeal was 11 April, 2003. The appeal was received and stamped by the registry on 14 April 2003.

The appeal was on the quantum of damages and costs; liability was not in issue. The quantum issue related to the award of $11,956 for economic loss and specifically mitigation and calculations relating to social security payments. The appeal in relation to costs was that the tribunal's discretion in this regard was not 'judicially exercised, and miscarried'.

Reasoning

The Appeal Panel referred to the earlier decision involving the parties where the out of time issue was considered. In 'Lupevo Pty Ltd t/a Ampol Nabiac v Bree' ([2002] NSWADTAP 9), the Appeal Panel listed the relevant principles to be applied when considering whether to exercise its discretion to extend time:

  • The reason for the failure to lodge the appeal.
  • The length of the delay in lodging the appeal.
  • The diligence shown by the employer in lodging the appeal after it came to his notice that there were circumstances justifying an appeal.
  • The nature of the decision below and the consequences of the decision upon the employer's rights.
  • The adequacy of the information conveyed to the employer at the time the decision was notified to him, both as to the reasons for the decision and of the employee's entitlement to appeal.
  • The extent of the employer's knowledge of the relevant statutory provisions.
  • The possible prejudice to the employee to the appeal.

In addition to the above, the merits of the appeal and 'fairness and equity' should be added. The abovementioned panel also referred to the decision in 'Comcare v A'Hearn' (1993 45 FCR 441), for the proposition that an 'acceptable explanation will generally be expected in support of an application for [an] extension of time…'.

The employer did not satisfy the Appeal Panel that the discretion should be exercised: the employer gave no adequate reason for the late lodgement of the appeal, the relevant dates for lodgement were given to them by the registry and the legal representatives had 'intimate knowledge of the relevant statutory provisions' concerning lodgement of appeals.

As to the merits of the case on the issue of quantum the Appeal Panel considered the grounds of appeal to be unlikely to succeed. 

In assessing the merits of the case on the issue of costs, the panel noted that: 'The tribunal has a broad discretion to award costs where it is of the opinion that there are circumstances that justify it doing so. Even if the tribunal's decision in relation to costs was not a decision another tribunal would have made, that does not mean that the discretion was not exercised in accordance with law. In our view the merits of the employer's case in relation to costs is weak.'

On the issue of the costs of this appeal, the Appeal Panel noted that this was the second time that the employee had incurred the cost of responding to an out of time appeal and as such it constituted 'special circumstances' warranting an award of costs.

See: Lupevo Pty Limited & Ors v Bree (EOD) [2003] NSWADTAP 18 - (Hennessy DP, Innes - Judicial Member, Nemeth de Bikal - Member) 18 June 2003.

 
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