Appeal Panel CITATION: Fonua -v- The Broken Hill Proprietary Company Limited & ors (EOD) [2000] NSWADTAP 19 APPELLANT Liufau fonua FIRST RESPONDENT The Broken Hill Proprietary Company Limited SECOND RESPONDENT Bruce Mewett PARTIES: THIRD RESPONDENT Brad McMahon FOURTH RESPONDENT Allan Golding FIFTH RESPONDENT Bill Gately FILE NUMBER: 999022 HEARING DATES: 03/08/2000 SUBMISSIONS CLOSED: 08/03/2000 DATE OF DECISION: 10/05/2000 Principal matter DECISION UNDER APPEAL: BEFORE: Hennessy N (Deputy President); Rice S - Judicial Member; Alt M - Member CATCHWORDS: costs - leave to appeal out of time MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 37 of 1998 DATE OF DECISION UNDER APPEAL: 08/09/1999 LEGISLATION CITED : Anti-Discrimination Act 1977 Fonua v The Broken Hill Pty Co Ltd and Ors [[1999] NSW ADT 59 CASES CITED: Gallo v Dawson (1990) 64 ALJR 458 Langley v Niland (1981) 2 NSWLR 104 Langley v University of New South Wales (1984) EOC 92-018 APPELLANT REPRESENTATION: In person RESPONDENTS J Downey, solicitor ORDERS: 1. The Appeal Panel does not allow the appellant any further time to lodge an appeal against the decision of the Tribunal made on 9 August 1999; 2. Consequently, the appeal lodged out of time by the appellant is dismissed; 3. The appellant is ordered to pay each of the respondent's costs of this appeal assessed on a party party basis, within twenty one days of the date on which the parties may agree on the amount of those costs, or failing agreement, within 21 days after the date of this decision, such costs to be assessed in accordance with the provisions of the Legal Profession Act 1987. The costs of such assessment to be included in this award of costs. History of the proceedings 1 On 9 August 1999, the Tribunal made a decision in Fonua v The Broken Hill Pty Co Ltd and Ors [[1999] NSW ADT 59. The two other respondents to the complaint were Bruce Mewett and Brad McMahon. Mr Fonua's complaints made under the Anti-Discrimination Act 1977 (the Act) were dismissed and he was ordered to pay the respondent's costs. The Tribunal's orders, in full, were that: Pursuant to Section 111(1) of the Act, the Tribunal finds that the two complaints of unlawful discrimination and the complaint of victimisation are misconceived and lacks substance and the Tribunal directs that each complaint be dismissed. Pursuant to section 111(2) of the Act, the Triubnal orders that the Complainant pay the costs reasonably and properly incurred by each of the Respondents, assessed on a party party basis, within twenty-one (21) days of the date on which the parties may agree on the amount of those costs, or failing agreement, within 21 days after the date of this decision, such costs to be assessed in accordance with the provisions of the Legal Profession Act 1987. The costs of such assessment to be included in this award of costs. 2 Mr Fonua's complaint was that he was discriminated against on the grounds of his race and victimised. The undisputed facts were that Mr Fonua was an employee of the first respondent and he attended a retirement planning seminar held by first respondent. The issue was whether he attended that seminar as a support person for another employee or as an interpreter. Mr Fonua alleged that BHP had agreed to pay his fees as an interpreter. BHP said he attended as a support person and all his expenses were paid, but they did not agree for him to attend as an official interpreter. Subsequently BHP agreed to pay Mr Fonua an ex gratia amount of $412.50. Mr Fonua's claim was under s 10 of the Act which relates to unlawful discrimination against a contract worker by a principal as well as under s 50 in relation to victimisation. The Tribunal found that Mr Fonua was not a contract worker pursuant to s 4 of the Act nor was he unlawfully discriminated against pursuant to s 8 of the Act which relates to applicants and employees. Consequently the Tribunal found that Mr Fonua's allegations were not covered by any area of activity to which the Act relates. 3 A second complaint of race discrimination related to the alleged treatment of Mr Fonua at the counter by the first respondent on 29 August 1997. The Tribunal preferred the evidence of the officers of the first respondent in relation to this incident and dismissed the complaint. 4 In relation to the complaint of victimisation, the Tribunal found that the treatment afforded to Mr Fonua on that occasion was not as a result of previous proceedings between the parties or the allegations arising out of those proceedings. The complaints were dismissed pursuant to s 111 of the Act and a costs order made. 5 In cross examination Mr Fonua agreed that in addition to seeking redress for these complaints, he was motivated in bringing the proceedings by his dissatisfaction with his dismissal from the BHP in 1993. He was also motivated to seek redress in the Tribunal by the failure of the President of the Anti-Discrimination Board to accept the 22 complaints that he made arising out of that dismissal. 6 Mr Fonua appealed against the Tribunal's decision on 4 October 1999. He named Alan Golding and Bill Gately as fourth and fifth respondents to the appeal. He acknowledged in his application that the appeal was lodged out of time and gave the following reasons for his lateness: On 30 August 1999 the appellant filed a summons against the defendants in the Supreme Court of NSW that the decision of the Tribunal given on 9 August 1999 was wrong and involved errors of law On 28 September 1999 the appellant at the hearing of the matter No. 300062/99 withdrew the summons and advised the Court that he would file a notice of appeal with the Administrative Decisions Tribunal. 7 On 21 October 1999, the first and third respondents filed a Notice of Reply to the appeal. That reply alleged, in part, that the appellant has not identified any error of fact or law and that the appellant has not provided sufficient reason for his failure to file his appeal within time. In addition the reply stated that the fourth and fifth respondents were not parties to the appellant's original complaint. The reply stated that the Tribunal denied an application to joint them as parties to the complaint and accordingly, the appeal against the fourth and fifth respondents is incompetent. 8 On 4 November 1999 the Appeal Panel made the following directions: (a) Appellant to file and serve amended Notice of Appeal by 11 November 1999; (b) Respondent to file and serve amended reply by 25 November 1999; (c) Appeal Panel to decide issues of out of time and whether a question of law has been identified, on the papers. 9 On 9 December 1999 the Tribunal received a letter from the solicitors for the respondent advising that since the appellant had not filed an amended Notice of Appeal, they were unable to reply. The letter also requested that the Appeal Panel exercise its discretion not to grant leave to the appellant to file his appeal out of time under s 113(3)(b) of the Administrative Decisions Tribunal Act 1997 (the ADT Act). Alternatively, the solicitors for the respondent submitted that the Appeal Panel dismiss the proceedings under s 73(5)(h) of the ADT Act on the basis that the appeal is frivolous, vexatious, misconceived or lacking in substance. The respondent also sought costs and requested that the Appeal Panel determine the matters without holding a hearing, in accordance with s 76 of the ADT Act. 10 On 28 January 2000 Mr Fonua filed an Amended Notice of Appeal and a submission. The matter was relisted for directions on 13 July 2000. The delay in relisting was the result of an oversight for which the Tribunal apologises. On 13 July 2000 the Appeal Panel directed that: (a) By 27 July 2000, the appellant is to file and serve any submissions in relation to the out of time question, the application for dismissal under 73(5)(h) of the ADT Act and the application for costs; (b) By 3 August 2000, the respondent is to file and serve any submissions in reply; (c) The Appeal Panel will decide the questions of out of time, whether any error of law has been identified, application for dismissal and costs, on the papers, after 3 August 2000. 11 On 3 August 2000 the respondent wrote to the Tribunal advising that since the appellant had not complied with the first direction, they could not comply with the second direction. The respondent reiterated its earlier applications that leave not be granted to the appellant to file the appeal out of time, that the Appeal Panel dismiss the appeal and that costs be awarded in favour of the respondent. Reasoning and Decision 12 Purported appeal against Alan Golding and Bill Gately as fourth and fifth respondents: The purported fourth and fifth respondents to the appeal, Alan Golding and Bill Gately, were not parties to the appellant's original complaint. Consequently any appeal against them is incompetent and is dismissed. 13 Out of time issu.: The ADT Act provides for time limits in relation to appeals. Section 113(3) states that: (3) An appeal 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. 14 Mr Fonua lodged his appeal on 4 October 1999, approximately 3 weeks late. The reason he gave was that he had mistakenly lodged the appeal in the Supreme Court. He produced a copy of the summons filed in the Supreme Court on 30 August 1999 which was returnable on 28 September 1999. When Mr Fonua discovered that he should have appealed to the Administrative Decisions Tribunal he lodged an appeal on 4 October 1999. 15 In Gallo v Dawson (1990) 64 ALJR 458, McHugh J considered an application for extension of time to lodge an appeal against a decision of the High Court. The extension of time in that case was governed by the provisions of the Judiciary Act 1903 (Cth) and the Rules of the High Court (the Rules). Under the Rules, a notice of appeal had to be lodged within 21 days of the date of the decision but the court had power to enlarge the time appointed by the Rules if the justice of the case required. In that case, McHugh J said, at p 499, that "The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties." McHugh J went on to say, at p 459, that: This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the application succeeding in the appeal. 16 The Appeal Panel's discretion to extend time is unfettered. Unlike the situation under the High court Rules, it is not circumscribed by any requirement in relation to justice between the parties. The Appeal Panel must take all the relevant circumstances into account in determining whether or not to extend time to lodge an appeal. Those circumstances include the matters listed in by the High Court in Gallo v Dawson. 17 The history of the proceedings has been set out above. Mr Fonua acted promptly in lodging an appeal with the Appeal Panel, shortly after he found out that he had lodged an appeal in the wrong jurisdiction. The issue for the appeal panel is whether, despite the fact that Mr Fonua had a good reason for lodging the appeal out of time, the Appeal Panel should nevertheless refuse to grant an extension of time. 18 Two relevant considerations in determining this issue, as enunciated by the High Court in Gallo v Dawson, are the conduct of the parties and the consequences for the parties of a grant or refusal of the application to extend time. In this case there is strong evidence that Mr Fonua's conduct in bringing the application before the Tribunal and the Appeal Panel is disingenuous. He admitted in cross examination that part of his motivation for bringing the complaint was his dissatisfaction with his dismissal from BHP in 1993. In addition, as the Tribunal pointed out in its decision at first instance at paragraph 54, Mr Fonua accepted an ex -gratia payment of $412.50 for his interpreter services and yet still continued with his complaint of race discrimination. Had he accepted that payment, none of the respondents would have incurred any of the costs related to these proceedings. 19 A further relevant consideration is Mr Fonua's prospects of succeeding in his appeal. In relation to the race discrimination complaints, the Tribunal found that the complaint did not come within an area of activity where discrimination, if found, would be unlawful. The Tribunal rejected Mr Fonua's submission that s 10 of the Act, which relates to contract workers, described his relationship with the respondent. The Tribunal also examined other possible areas of activity where discrimination is unlawful but concluded that none covered the relationship between Mr Fonua and the respondent. 20 The finding of the Tribunal that Mr Fonua has not made out a requisite relationship or area of activity as required by the Act is addressed by Mr Fonua in the Amended Notice of Appeal. Ground 4 states that: The Tribunal wrongly failed to take into consideration that the respondents had agreed to pay the complainant some fees and expenses before the seminar started involved an error of law. 21 This ground simply restates the allegations of fact that failed before the Tribunal. This finding of fact in relation to the non-existence of a relationship or area of activity covered by the Act is clearly supported by the evidence. There being no evidence of a relationship or area of activity between the complainant and the respondent which is covered by the Act, the complaints of race discrimination have little or no prospect of success. 22 In relation to the appeal against the Tribunal's dismissal of Mr Fonua's victimisation complaint the facts as found by the Tribunal clearly support a finding that there was no victimisation. 23 This finding is addressed in the Amended Notice of Appeal ground 5. That ground states that: The Tribunal erred in findings that the respondents had unlawfully victimised the complainant in breach of s 50(a)(b) and (d) of the Act involved an error of law. 24 No such error is apparent in the Tribunal's reasoning. There being no facts supporting the complaint of victimisation, the appeal has little, if any, prospect of success. 25 Taking into account all the relevant considerations, the Appeal Panel has come to the view that it should not grant Mr Fonua an extension of time in order to lodge an appeal. Mr Fonua's conduct, the consequences for all parties in refusing to extend the time and the prospects of success indicate that the Appeal Panel should not allow Mr Fonua any further time to lodge an appeal than the 28 days provided in s 113(3) of the ADT Act. 26 Even if the Tribunal's reasoning and conclusions in relation to this decision are wrong, our findings set out in paragraphs 22 and 25, would also allow us to dismiss the appeal under s 73(5)(h) of the ADT Act. That provision states that: The Tribunal: (h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance. 27 As the Tribunal pointed out in paragraph 56 of its decision, Hunt J in Langley v Niland (1981) 2 NSWLR 104, defined "misconceived" in the following way: 'Misconceived' should not in my view, be given here a meaning beyond a complaint founded upon a wrong idea as to the facts, so that a common genus or class is maintained with the three other adventives utilised in section 90(1). 28 On the basis of the Appeal Panel's findings, Mr Fonua's appeals against the Tribunal's findings in relation to both the race discrimination complaints and the victimisation complaint are misconceived. 29 Costs. The respondent sought costs in relation to the appellant's appeal. Section 88 of the ADT Act provides 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. 30 In all the circumstances of this case, as set out above, we are satisfied that there are special circumstances warranting an award of costs against the appellant. The Tribunal at first instance did not make a finding that the complaints were frivolous or vexatious because the respondents did not invite them to do so, but they did say that: The Tribunal is concerned that the pursuit by the Complainant of these complaints goes beyond the misconception on his part of the application of the Act to the circumstances relating to his complaints. The pursuit of the claims of discrimination, after accepting payment of the amount which he claimed for interpreter services, points to the frivolous nature of that pursuit and of the complaints. The complaint of victimisation, taken in the context of the pursuit of the claims of discrimination, also suggested a frivolous approach by the Complainant to the pursuit of that claim. 31 In the decision under appeal, the Tribunal quoted a passage from the judgement of Hutley JA in Langley v University of New South Wales (1984) EOC 92-018 at 75, 464 at 75,468 in which His Honour said that: In my opinion, the complaints in this case lacked any conceivable merit in fact or law. Under those circumstances my only criticism of the proceedings so far is that this was a case in which the complainant was not ordered to pay the costs by the Tribunal. That is the one effective sanction available to keep this Act within bounds and to ensure it will not be made the subject of gross abuse. 32 There is ample evidence in this case that the complainant has made the Act the subject of gross abuse. The Appeal Panel is satisfied that the appellant should pay each of the respondent's costs of this appeal assessed on a party party basis, within twenty one days of the date on which the parties may agree on the amount of those costs, or failing agreement within 21 days after the date of this decision, such costs to be assessed in accordance with the provisions of the Legal Profession Act 1987. The costs of such assessment to be included in this award of costs. 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.