Appeal Panel - Internal CITATION: Lupevo Pty Limited & Ors -v- Bree (EOD) [2003] NSWADTAP 18 APPELLANTS Lupevo Pty Limited t/a Ampol Nabiac PARTIES: David Clark Tonya Clark RESPONDENT Roxford Spencer Bree FILE NUMBER: 039018 HEARING DATES: 02/06/2003 SUBMISSIONS CLOSED: 06/02/2003 DATE OF DECISION: 06/18/2003 Bree v Lupevo Pty Limited & Ors [2003] NSWADT47 DECISION UNDER APPEAL: BEFORE: Hennessy N - Magistrate (Deputy President); Innes G - Judicial Member; Nemeth de Bikal L - Member CATCHWORDS: costs - leave to appeal out of time MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 001051 DATE OF DECISION UNDER APPEAL: 03/11/2003 Administrative Appeals Tribunal Act 1975 LEGISLATION CITED : Anti-Discrimination Act 1977 Interpretation Act 1987 Legal Profession Act 1987 Bree v Lupevo Pty Limited & Ors [2003] NSWADT 47 Lupevo Pty Ltd t/a Ampol Nabiac -v- Bree [2002] NSWADTAP 9 Meschino and Secretary, Department of Family and Community Services [2001] AATA 342 Re Schmack and Defence Force Retirement and Death Benefits Authority (1981) 3 ALN N77 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Goldie and Minister for Immigration and Multicultural Affairs [2001] AATA 513 CASES CITED: Maric v Comcare (1993) 40 FCR 244 Comcare v A'Hearn (1993) 45 FCR 441 Janiak v Ippolito [1985] 1 SCR 146 Munce v Vinidex [1974] 2 NSWLR 235 (CA) Najdovska & Ors v Australian Iron and Steel Pty Ltd (1986) EOC 92 176 Cardozo v Centreline Service Systems Pty Ltd (1995) EOC 92-759 Tu -v- University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 APPELLANTS REPRESENTATION: R Pepper, barrister RESPONDENT D Fryatt, solicitor ORDERS: 1. The application to extend time for lodging the appeal is refused.; 2. The appeal is dismissed.; 3. The appellants are to pay the respondent's costs of this appeal as agreed or, if not agreed within 21 days, as assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987. Introduction 1 This is an appeal against a decision of the Equal Opportunity Division of the Tribunal in Bree v Lupevo Pty Limited & Ors [2003] NSWADT 47 in which they made the following orders: The Respondent pay to the Applicant by way of compensation for the unlawful discrimination of the Applicant, a total amount by way of compensation in the sum of $16,956.00. The Respondent pay to the Applicant the costs and expenses incurred by the Applicant in making of his complaint and the holding of this inquiry into this complaint. The Tribunal notes that this order does not include the costs of the Applicant incurred in defending the Respondent's application under s 111 of the Act heard before a different Tribunal. The Tribunal further directs that if the parties are unable to agree on the amount of the costs to be paid to the Applicant within a period of 28 days from the date of this decision that the Applicant seeks an assessment of those costs pursuant to the Legal Practitioners Act. 2 The respondents to the proceedings before the Tribunal are the appellants in these proceedings. The decision is an original decision made under the Anti-Discrimination Act 1977. Jurisdiction 3 The Appeal Panel has jurisdiction to hear this matter pursuant to s 113 of the ADT Act. That section states that: (1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. (2) An appeal under this Part: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision. (3) An appeal under this Part must be made: (a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or (b) within such further time as the Appeal Panel may allow. (4) An appeal under this Part is to be made in the manner prescribed by the rules of the Tribunal. Out of time 4 Section 113(3) of the ADT Act provides that an appeal must be made within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision or within such further time as the Appeal Panel may allow. A question arose during the course of the hearing as to whether the appeal had been lodged within time. As the Tribunal raised this matter, the hearing was adjourned to give the solicitors for the appellants time to obtain instructions. 5 The Tribunal's decision is dated 11 March 2003. The Tribunal furnished the party with written reasons for the decision by post. The solicitors for the appellants told the Tribunal that they received those reasons on 14 March 2003. We accept that 14 March is the date the Tribunal furnished the appellants with the written reasons. In accordance with s 36(1) of the Interpretation Act 1987, "the time shall be reckoned exclusive of" 14 March 2003. Consequently, twenty-eight days from 14 March is 11 April 2003. For the appeal to have been lodged within time it should have been filed with the Tribunal by close of business on Friday 11 April 2003. Friday 11 April 2003 was not a public holiday or a bank holiday in New South Wales, so the provisions of s 36(2) of the Interpretation Act 1987 do not apply. 6 The Notice of Appeal is dated 10 April 2003 and may have been posted on that day, but was not received and stamped by the Tribunal as having been filed until Monday 14 April 2003. Consequently the appeal was not made within 28 days after the Tribunal furnished the appellants with the written reasons for the decision. 7 The Appeal Panel must consider whether it should allow the appellants further time to lodge the appeal. The respondent submitted that the appeal was lodged out of time and that the Tribunal should not extend the time for lodgement. Factors relevant to accepting an appeal out of time 8 The factors relevant to a consideration of this issue were set out by the Appeal Panel in Lupevo Pty Ltd t/a Ampol Nabiac -v- Bree [2002] NSWADTAP 9. Ironically that decision involved an interlocutory application in the present proceedings and concerned two of the same parties: Lupevo Pty Ltd and Mr Bree. Mr and Mrs Clark were later joined as parties as the service station at Nabiac was owned and is still owned by a partnership comprising Mr David Clarke and Mrs Tonya Clarke. The Tribunal had refused an application by Lupevo Pty Ltd t/a Ampol Nabiac to have the complaint dismissed under s 111 of the Anti-Discrimination Act 1977. Lupevo Pty Ltd appealed against that decision but the appeal was lodged six weeks out of time. The Appeal Panel refused the appellant's application for leave to file an appeal out of time. At [5] to [9], the Appeal Panel set out the relevant principles to be applied when considering whether to exercise its discretion to extend time: The section invokes a broad discretion in the Panel to extend the time for the lodgement of the appeal. In that respect, it is on all fours with s 29(7) of the Administrative Appeals Tribunal Act 1975 (Clth) (the AAT Act), albeit that provision refers to the time within which application may be made to the Commonwealth Administrative Appeals Tribunal (the AAT) for a review of an administrative decision. Section 29(7) of the AAT Act has been the subject of a number of AAT decisions, which are helpful in the present context. In Meschino and Secretary, Department of Family and Community Services [2001] AATA 342 the AAT referred to Re Schmack and Defence Force Retirement and Death Benefits Authority (1981) 3 ALN N77 in reliance upon a number of factors relevant to the exercise of the discretion, which may be re-stated as follows:- · the reason for the failure to lodge the appeal. · the length of the delay in lodging the appeal. · the diligence shown by the Appellant 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 Appellant's rights. · the adequacy of the information conveyed to the Appellant at the time the decision was notified to him, both as to the reasons for the decision and of the Appellant's entitlement to appeal. · the extent of the Appellant's knowledge of the relevant statutory provisions. · the possible prejudice to the Respondent to the appeal. The AAT also referred to Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 with approval. The principles to be applied in the exercise of the discretion which were summarised by Wilcox J in Hunter Valley Developments were also applied in Goldie and Minister for Immigration and Multicultural Affairs [2001] AATA 513. Those principles relevantly are:- · Prima facie, proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so. · It is relevant whether the Appellant rested on his rights or took action to make the decision-maker aware that the decision was being contested. · Any prejudice to the Respondent that would be caused by granting an extension of time is relevant. · The merits of the appeal are relevant. · Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant. To the last-mentioned principle may be added general considerations of fairness and equity: Hunter Valley Developments, Maric v Comcare (1993) 40 FCR 244 at 249. Further to the provision of an explanation for the delay in lodging the appeal, an acceptable explanation will generally be expected in support of an application for extension of time, and a failure to provide such an explanation is also a relevant factor in the exercise of the discretion to extend the time: Comcare v A'Hearn (1993) 45 FCR 441 at 444. 9 In the present case, the appellants gave no reason for lodging the appeal out of time, apart from the fact that they do not have a Document Exchange (DX) address and have to rely on Australia Post. 10 The length of the delay is short. The appeal was lodged three days out of time, only one of which was a working day. Even if the appeal was successful it would only result in the appellants paying a lesser quantum of damages and/or costs than the amount they are currently liable to pay. The appellants did not appeal in relation to liability. 11 It is the Tribunal's usual practice when furnishing a copy of written reasons for a decision, to notify each party in writing that they have 28 days in which to lodge an appeal. The appellants did not submit that such a notice was not given in this case and we find that it was given. The appellant, Lupevo Pty Ltd, and its legal representatives had intimate knowledge of the relevant statutory provisions in relation to appeals because the Appeal Panel had failed to extend the time for lodging an appeal at an interlocutory stage of the same proceedings. 12 There is no real prejudice to the respondent in the Appeal Panel accepting the matter out of time, because the out of time issue was only raised by the Tribunal after the submissions in the substantive appeal had almost been completed. The respondent had already prepared its response to the appeal and had not raised the out of time issue. Merits of the appeal 13 The merits of the appeal are also relevant. Although the appellants initially appealed on several grounds, their legal representatives advised the respondent and the Tribunal on 29 May 2003 that the appeal was confined to the issues of quantum of damages and costs. 14 The issue of quantum only related to the award of $11,956 for economic loss. The appellants made two submissions in relation to quantum of damages. The first submission was that the Tribunal erred in concluding that by looking for employment as a service station attendant Mr Bree had reasonably attempted to mitigate his loss during his six months of unemployment. The second submission was that the Tribunal erred by failing to take into account the social security payment Mr Bree admitted receiving during the period of his unemployment. 15 The appellants conceded that the Tribunal correctly stated the law when it said at [52] of the decision that Mr Bree was under a duty to "mitigate his loss by regularly attempting to find work." It was the allegedly narrow definition of "work" that the Tribunal applied to the circumstances of this case that the appellants highlighted. Although the appellants did not identify a question of law, the thrust of their submission was that the Tribunal should have found that Mr Bree did not mitigate his loss because he did not look for work for which he was qualified in areas other than as a service station attendant. 16 The appellants conceded that it did not submit before the Tribunal that Mr Bree's evidence of how he mitigated his loss was inadequate on the basis that it was confined to work in service stations. Furthermore, the appellants conceded that the Tribunal correctly stated the law in the decision. 17 The burden is on the respondent to prove that the applicant's refusal to mitigate his or her loss was unreasonable. (Janiak v Ippolito [1985] 1 SCR 146; Munce v Vinidex [1974] 2 NSWLR 235 (CA); See also Najdovska & Ors v Australian Iron and Steel Pty Ltd (1986) EOC 92 176 at 76,696 –76,697.) It was up to the appellants when the matter was before the Tribunal, to establish that the respondent had not mitigated his loss. They did not do so. In all the circumstances, this ground of appeal must be regarded as having little merit. 18 In relation to the appellants' submission that the Tribunal should have deducted the social security payments the respondent received from any award for loss of earnings, authority in this Tribunal is to the contrary. In Cardozo v Centreline Service Systems Pty Ltd (1995) EOC 92-759 at 78, 631 Judicial Member Bell dealt in detail with this issue and concluded that unemployment benefits (however described) received by the complainant during the period for which damages for loss of earnings are to be awarded, should not be set off against the amount of damages awarded. This conclusion was based on an analysis of the relevant case law and the relevant provisions of the Social Security Act 1991 and its predecessors. The appellants did not refer to this decision. In these circumstances, the appellants' appeal on this ground is unlikely to succeed. 19 The appellants submitted that the Tribunal erred in ordering it to pay costs. Section 114 of the Anti-Discrimination Act 1977, provides that, in general, each party shall pay his or her own costs. The exception to that general rule is that where the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs as it thinks fit. Apart from submitting that the awarding of costs in this case was not consistent with other Tribunal decisions in relation to costs, the appellants did not identify with any precision, the error of law the Tribunal had allegedly made. It was asserted that in making the costs order the Tribunal's discretion was "not judicially exercised and miscarried." This formulation provides little assistance to the Tribunal in attempting to identify a question of law. 20 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 appellants' case in relation to costs is weak. Decision and Reasons 21 Prima facie, proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted only if it is proper to do so. Despite the fact that the Notice of Appeal in this case was only three days late, the Tribunal must nevertheless properly consider whether to extend the time for the lodging of the appeal. We must weigh all the relevant factors listed and discussed above in order to determine whether to extend the time. 22 In this case it is relevant that the same party, represented by the same legal representative, was previously refused an extension of time in relation to an appeal in the same proceedings. In those circumstances the time period for lodging an appeal should have been at the forefront of the appellant's mind when the substantive decision was handed down. In addition, the Tribunal gave express notice of the time period for lodging an appeal. The appellants provided no reasonable explanation for the delay and the grounds of appeal are extremely weak. The only factor in favour of extending time is that the respondent would not be prejudiced. In all the circumstances we do not extend the time for lodging an appeal. Costs of this appeal 23 The respondent applied for an order for its costs in relation to this appeal pursuant to s 88 of the ADT Act. Section 88 states that: (1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, "costs" includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. 24 In Tu -v- University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 the Appeal Panel made some observations about the approach it should take to an application for costs in equal opportunity matters. The Panel said at [61] to [63], that: The access principles that may justify a liberal view in respect of non-use of the costs sanction at the primary level of the Tribunal should not be as readily applied in respect of failed appeals. In equal opportunity appeals a distinction should be drawn between appeals against summary dismissal decisions and appeals in respect of matters that were fully heard and determined. Appellants against summary dismissal decisions who fail on appeal should normally be required to meet the respondent's costs of the appeal (at least to the extent of the services of one legal practitioner). There should be a fuller adoption of the rule in s 111(2) of the ADA than may be appropriate at first instance. In cases where there has been a full contest and an appeal is lodged, the position will often be different, and often there may be no order as to costs in relation to the appeal, in keeping with the approach reflected in s 114 of the ADA. The appeal though unsuccessful may have, for example, raised an important point of law that was not free from doubt. 25 The respondent has already incurred the cost of defending an appeal that was dismissed because it was lodged out of time. This is the second time that the respondent has been put to the expense of responding to an out of time appeal. In our view the conduct of the appellants in lodging a second appeal out of time in the same matter constitutes special circumstances warranting an award of costs. Orders 1. The application to extend time for lodging the appeal is refused. 2. The appeal is dismissed. 3. The appellants are to pay the respondent's costs of this appeal as agreed or, if not agreed, as assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.