Appeal Panel CITATION: Murphy -v- David Jones Limited [2002] NSWADTAP 42 APPELLANT PARTIES: Emmett Joel Murphy Junior RESPONDENT David Jones Limited FILE NUMBER: 029038 HEARING DATES: 09/12/2002 SUBMISSIONS CLOSED: 12/09/2002 DATE OF DECISION: 12/17/2002 Murphy -v- David Jones Limited [2002] NSWADT 140 DECISION UNDER APPEAL: BEFORE: Hennessy N - Magistrate (Deputy President); Needham J - Judicial Member; Weule B - Member CATCHWORDS: no question of law identified MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 011012 DATE OF DECISION UNDER APPEAL: 08/15/2002 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Legal Profession Act 1987 Mayhew v A [1999] NSWADTAP 1 CASES CITED: Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 Brooks Maher v Cheung [2001] NSWADT 18 APPELLANT REPRESENTATION: In person RESPONDENT R McIlroy ORDERS: 1. Appeal dismissed; 2. The Appellant to pay the Respondent's costs on the hearing of the Appeal. If the parties are unable to agree on the amount of costs, it is to be determined by a costs assessor in accordance with the Legal Profession Act 1987. Introduction 1 This is an appeal against a decision made by the Tribunal on 15 August 2002. The decision was made in response to a complaint by the appellant, Emmett Joel Murphy Junior, that he had been discriminated against on the ground of race by the respondent, David Jones Ltd. Mr Murphy also alleged that the respondent had victimised him. Both complaints were brought pursuant to the Anti-Discrimination Act 1977 (ADA). 2 The Tribunal made the following orders: The complainant of discrimination on the ground of race is substantiated as to one of the allegations made. The complaint of victimisation is dismissed. The respondent shall within 28 days pay to the complainant the sum of $1,000 by way of compensation for loss and damage. Jurisdiction 3 The Appeal Panel has jurisdiction to hear this matter under s 113(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act). Section 113(2) allows a party to appeal to an Appeal Panel of the Tribunal "on any question of law." With leave, the appeal may extend to a review of the merits of the appealable decision. Mr Murphy applied for the Tribunal to grant leave for the appeal to be extended to the merits of the Tribunal's decision. Notice of Appeal 4 The Notice of Appeal filed by the appellant on 27 August 2002 had five grounds of appeal. They are: 1. Disclosure: was not present during all proceedings A. Pty Ltd B. Discrimination harassment and victimisation 2. Gross negligence A. Preparation of proceedings B. Expiry of evidence by Respondent 3. Evidence to include prior evidence given by Mr EJ Murphy Jr on behalf of Emmett Joshua O'Reilly Junior A. Statement from Ms Nicole Patricia Browne pertaining to harassment by store and Annette Boyd B. All statements on behalf of respondents still remain disputed. 4. Evidence to include prior evidence given by Emmett Joshua O'Reilly Junior on behalf of EJ Murphy Junior A. Closing statement B. Final Submission C. Statement by Ms Nicole Patricia Browne D. All Information located in NSW by-law. Termination of Australia Pertaining to David Jones Pty Ltd vs EJ Murphy Junior; David Jones Pty Ltd vs Emmett Joshua O'Reilly Junior 5. Request for respondent's evidence A. Gross negligence with decision rendered and handed down past the due date. Australian By-law 55-71 located within NSW by-law terminal of Australia. 5 The appellant provided further written submissions on 15 October 2002 and 23 October 2002. The appellant also provided written submissions which quoted Volume 5-7 Australian By-laws Act 53-71 of Retail by Laws of Australia and Volume 55-57 Act 5-51 Discrimination, Victimise and Harassment By laws of Australia. Those submissions do not cast any further light on the appellant's grounds of appeal. 6 Although he ticked the "No" box in paragraph 7 of the Notice of Appeal in response to the question "Do you wish to apply for leave to extend the appeal to a review on the merits of the decision?" we assume that the appellant was seeking to appeal on the merits. That assumption stems from the fact that he answered the question "What are your reasons for asking the Tribunal to extend the appeal to the merits?" Notice of Reply 7 In their reply, the respondents stated, in summary that no error of law has been identified by the appellant. The respondent went on to set out some material facts in response to the appellant's grounds of appeal. The respondent also applied for an order for costs. Directions hearing 8 The presiding member of the Appeal Panel held a directions hearing by phone on 26 September 2002. The respondent's representative attended in person. At that hearing, the member advised the appellant that a costs order may be made against him if he failed to identify a possible error of law in the Tribunal's decision and/or his appeal had no reasonable prospect of success. Decision and reasons 9 We have read all the material in relation to this appeal and listened to the oral submissions of both parties. The Appeal Panel is bound by the law as set out in the Anti-Discrimination Act 1977, the Administrative Decisions Tribunal Act 1997 (ADT Act) and the common law as to what constitutes a "question of law" in s 113(2) of the ADT Act. Several decisions of the Appeal Panel have set out what constitutes a question of law. (See, for example, Mayhew v A [1999] NSWADTAP 1.) 10 On the basis of that material, the appellant has failed to identify a question of law. Even if a question of law has been identified, we accept the submission in the respondent's reply as establishing that no error has been made out which would vitiate the Tribunal's decision. Extension to the merits 11 In relation to an extension of the appeal to the merits of the Tribunal's decision, the approach that the Tribunal has consistently adopted in relation to appeals was outlined by the Appeal Panel in Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8. The Appeal Panel said, at [4] that: It is necessary for the appellant, therefore, to identify possible errors in the reasoning of the decision under appeal. It would appear that at least an arguable question of law would need to be identified before any consideration could be given to permitting an extension of the appeal to allow consideration of the merits. It would not be proper to embark on a consideration of the merits where no error of law was established. 12 We have adopted this approach in the present case. Consequently the appeal on a question is law is dismissed and leave is not granted to extend the appeal to the merits. Costs 13 The respondent applied for costs. The basis for that submission was that the appeal had no reasonable prospect of success and that the appellant was warned at the directions hearing that failure to identify a question of law may result in an award of costs being made against him. 14 Section 88(1) of the ADT Act provides that "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." Section 88(3) provides that "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." As the ADA provides for the awarding of costs, we are of the view that s 88 is the relevant provision for determining whether a costs order should be made in these proceedings. 15 "Special circumstances" are those which take the matter out of the ordinary course of events, in the conduct and hearing of the appeal. In Brooks Maher v Cheung [2001] NSWADT 18 at [14], the Appeal Panel stated that: We are satisfied that the plain meaning of "special circumstances" is circumstances which are out of the ordinary, without having to be extraordinary or exceptional. But "special circumstances" alone are not sufficient. Under s 88(1), the special circumstances must "warrant an award of costs." The circumstances which would or would not "warrant an award of costs" cannot be exhaustively listed. However where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or insubstantial procedural or substantive applications, an award of costs may be warranted. 16 In our view, the appellant's appeal to the Appeal Panel is entirely without substance or merit. That alone is a "special circumstance" justifying an award of costs. Orders 1. Appeal dismissed. 2. The Appellant to pay the Respondent's costs on the hearing of the appeal. If the parties are unable to agree on the amount of costs, it is to be determined by a costs assessor in accordance with 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.