Anti-Islam Solicitor Robert Balzola loses another encounter in the Tribunal with Anti-Discrimination Campaigner Garry Burns.
- Medium Neutral Citation:
- Corbett v Burns  NSWCATAP 172
- Hearing dates:
- 12 August 2015
- Date of orders:
- 17 August 2015
- Decision date:
- 17 August 2015
- Appeal Panel
- Boland J ADCJ (Deputy President)
- 1. The applicant’s application for an extension of time to appeal the orders of the Administrative Decisions Tribunal made 15 October 2013 (“the orders”) is dismissed.
2. The application for a stay of the orders is dismissed.
- ADMINISTRATIVE LAW – Civil and Administrative Tribunal Act 2013 (NSW)
- Legislation Cited:
- Anti Discrimination Act 2007 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
- Cases Cited:
- Allesch v Manuz (2000) HCA 40, 203 CLR 172
Comaz (Aust) Pty Ltd v Commissioner of State Revenue  VSC 294
Jackson v NSW Land and Housing Corporation  NSWCATAP22
Metwally v University of Wollongong  HCA 28, 60 ALR 68, 59 ALJR 481
- Texts Cited:
- Australian Civil Procedure 10th ed (Cairns)
Cross on Evidence, Heydon JD
- Procedural and other rulings
- Tess Corbett (aka Therese Maree Corbett) (Applicant)
Garry Burns aka Gary Burns (Respondent)
Robert Balzola and Associates (Applicant)
K & L Gates (Respondent)
- File Number(s):
- AP 15/47082
- Decision under appeal
REASONS FOR DECISION
- These reasons concern interlocutory applications made by Ms Tess Corbett (Ms Corbett) in proceedings brought by Mr Garry Burns (Mr Burns) in the former Administrative Decisions Tribunal in 2013.
- Ms Corbett seeks an order staying four orders made by the Administrative Decisions Tribunal (ADT) on 15 October 2013 pending an application for an extension of time in which to file an application for leave to appeal, and if leave is granted, to appeal the ADT’s decision. The substantive application namely the appeal, and application for leave to appeal, being made out of the time provided in the Civil and Administrative Tribunal Rules 2014 (rule 25), requires, as a threshold requirement, that the Tribunal determine whether it should grant leave to extend time to file the application.
- Normally, an application such as the present application would be considered unremarkable. But the circumstances in which this matter came before me are unusual. This is because Ms Corbett has already agitated an appeal on a question of law against the relevant 2013 orders, and an application for leave to appeal on other grounds.
- The appeal on a question of law, and the application for leave to appeal on other grounds, was heard, as provided in the Civil and Administrative Tribunal Act 2013 (NSW), as an internal appeal by the Tribunal’s appeal panel. That appeal was dismissed, as was the application for leave to appeal on other grounds, on 30 April 2014. Ms Corbett was represented by counsel on the hearing of the appeal.
- Ms Corbett’s solicitor, who appeared for her on this application, submits that his client is entitled to bring another appeal against the 2013 orders on different grounds to those agitated before the appeal panel in 2014.
- In his oral submissions Mr Balzola asserted, because the Tribunal had allocated an appeal file number to the application, and a pro forma letter was forwarded to him by the Registry staff setting out the usual requirements for filing material in an appeal that, by inference, the Tribunal had granted an extension of time in which an application for leave to appeal may be filed. At the hearing I pointed out to Mr Balzola that I did not accept that submission, and afforded him the opportunity to make such submissions as he wished in support of all interlocutory applications before the Tribunal. Mr Balzola was also afforded an opportunity to file submissions in reply to oral submissions made by Mr Rodney who appeared for the respondent, Mr Burns.
- For convenience and ease of understanding, I will in these reasons refer to Ms Corbett as the applicant and Mr Burns as the respondent.
Issues to be determined in this interlocutory application.
- I discern the following issues were raised in the submissions made in interlocutory applications now before the Tribunal:
- Is the applicant statutorily barred from bringing the appeal? If not, has the applicant, in accordance with relevant principles, established that she should be granted an extension of time in which to appeal and/or to seek leave to appeal on other grounds? If an extension of time is granted other issues identified below arise.
- Is it necessary and/or appropriate at this point of time for the Tribunal to make any orders about the spelling of the respondent’s first given name?
- Does the applicant have a “right” to a second appeal in respect of the 2013 orders because she was denied procedural fairness by the Tribunal?
- As is submitted on behalf of the respondent, is the Tribunal functus officio and/or is the subject matter of the litigation finally concluded between the parties in the Tribunal such that the doctrine of res judicata applies.
- Is the only proper appeal right remaining to the applicant an application for leave to appeal out of time to the Supreme Court of New South Wales or to seek judicial review?
- If the applicant has established she should be granted an extension of time in which to appeal, should the orders made in 2013 be stayed?
- Is the Tribunal itself, in addition to government parties before it, bound by the NSW Model Litigant Policy?
Procedure in the Tribunal and relevant statutory provisions
- If the applicant has a right to bring this application, s 41 of the Civil and Administrative Tribunal Act 2014 (NSW) is relevant. It enables an applicant to bring an application for an extension of time to appeal a primary decision of the Tribunal. Section 41 provides as follows:
41 Extensions of time
(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
(2) Such an application may be made even though the relevant period of time has expired.
- An application for an extension of time is an interlocutory application as defined in s 6 of the Civil and Administrative Tribunal Act.
- Section 27 of the Civil and Administrative Tribunal Act and the accompanying notes set out the composition of the Tribunal for appeals. Section 27 (1) (d) provides that I may determine this application alone.
- Of significance to this application is s 32 of the Civil and Administrative Tribunal Act. That section sets out the extent of the Tribunal’s internal appeal power. Section 32 (3) (a) precludes the bringing of an internal appeal against any decision of the appeal panel. The section and accompanying notes are instructive:
32 Internal appeal jurisdiction of Tribunal
(1) The Tribunal has “internal appeal jurisdiction” over:
(a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and
(b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section.
(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its internal appeal jurisdiction:
(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,
(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.
(3) However, the internal appeal jurisdiction of the Tribunal does not extend to:
(a) any decision of an Appeal Panel, or
(b) any decision of the Tribunal in an external appeal, or
(c) any decision of the Tribunal in proceedings for the exercise of its enforcement jurisdiction, or
(d) any decision of the Tribunal in proceedings for the imposition of a civil penalty in exercise of its general jurisdiction.
The decisions above may be appealable to the Supreme Court and, in some cases in relation to civil penalty decisions made by the Tribunal (whether under this Act or enabling legislation), the District Court. See section 73 and Part 6. [my emphasis]
- An appeal against a decision of an internal appeal panel lies to the Supreme Court or to the District Court of NSW depending on the constitution of the Tribunal except in respect of contempt, or in respect of a decision of a Registrar (see s 82).
- I observe that the Tribunal’s form for filing an appeal may be described as a “multi-purpose” form. This is best explained by reference to the decision of the Appeal Panel in Jackson v NSW Land and Housing Corporation  NSWCATAP 22 at . There the President and Deputy President said:
Before noting the grounds of appeal relied upon, it is important to appreciate that although the form is called a Notice of Appeal it does not necessarily mean the party is lodging an appeal as of right. The Tribunal’s Notice of Appeal form allows a party seeking to appeal to complete just one form whether the party is asking for an extension of time in which to appeal, asking for leave to appeal, seeking a stay of the orders or decision appealed from or simply appealing as of right from an internally appealable decision. In addition, the form allows the party to request a hearing in a location other than Sydney and to provide other information, submissions and evidence. This course has been adopted in the Tribunal having regard to the requirement that the Tribunal act with as little formality as the circumstances of the case permit and without regard to technicalities or legal forms (s 38(4) of the Act) and the requirement that the Tribunal’s practice and procedures should be implemented so as to facilitate the resolution of issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings (s 36(4) of the Act). Having one multipurpose form has the benefit that a person seeking to appeal from an internally appealable decision of the Tribunal only has to obtain and complete one form so that there is greatly reduced scope for procedural confusion and technical mistakes. In addition, an applicant for an extension of time or for leave to appeal does not have to file a draft notice of appeal in addition to their application. In these circumstances and for the sake of simplicity, a party completing a Notice of Appeal form is called an appellant, even if technically that party might more precisely be considered to be merely an applicant for an extension of time in which to appeal or an applicant for leave to appeal.
- The background to this matter is conveniently set out, in part, in the reasons for decision of the Administrative Decision Tribunal on 15 October 2013. That Tribunal noted, in a complaint made to the Anti-Discrimination Board (the Board), the respondent alleged that the applicant had made vilifying statements about homosexuals that were reported on 22 January 2013 on the front page of a Victorian newspaper “the Hamilton Spectator”. The applicant’s statements were noted to have been republished in other newspapers and on the ABC in the next few days.
- By letter dated 23 April 2013 the President of the Board referred the respondent’s complaint to the ADT.
- An interlocutory order was made by the ADT that the respondent notify the Registrar of the applicant’s residential address. Subsequently, various letters, culminating in correspondence advising of a hearing date for the application, were forwarded by the Registrar to the applicant. The letter advising of the hearing date was sent by registered post and a receipt for the letter was in evidence before the ADT. The respondent advised the ADT he too had written to the applicant advising of the hearing date.
- The ADT, having satisfied itself that the applicant had notice of the proceedings, heard the matter in her absence on 3 October 2013.
- On 15 October 2013 the ADT published its reasons for decision and found the complaint of unlawful vilification was substantiated and made orders including an order that the applicant publish within 21 days an apology in the Sydney Morning Herald.
- On 12 November 2013 the applicant lodged an appeal against the ADT’s decision. The appeal was listed in this Tribunal on 30 April 2014 pursuant to the transitional provisions in place on the introduction of the Civil and Administrative Tribunal Act 2013 (NSW). At the appeal hearing the applicant was represented by Mr M White of counsel.
- In its decision dismissing the appeal, the appeal panel noted at  the applicant relied on three grounds of appeal in respect of a question of law. Later, in dealing with the application for leave to appeal, the appeal panel noted that the applicant had sought leave to tender a statement setting out her reasons for non-attendance at the 2013 hearing. But the appeal panel found there was no reason why the matters relied on could not have been presented at the hearing.
- On 7 July 2015 the respondent lodged in the Tribunal a General Application Form in which he seeks an order from the Tribunal that the Tribunal declare the applicant guilty of contempt under s 73(2) of the Civil and Administrative Tribunal Act and pursuant to s 73 (5) the Tribunal refer the matter to the Supreme Court for determination. That application was listed before me for directions on 12 August 2015, and is listed for hearing before the President and myself on 17 August 2015.
- On 31 July 2015 the applicant filed the current application in which she seeks an extension of time to file an internal appeal against the “primary decision in Burns v Corbett [ADT] 131029 made in 2013”.
- In written submissions provided by the applicant at the directions hearing it is asserted that, on 3 August 2015, an application for a stay was filed “seeking orders that the effect of the section 114 Certificate and Decision in the Internal Appeal be determined”. The submission further records on 3 August 2015 that a Notion of Motion was filed in the Supreme Court “to stay the effect of a Judgment Order made 24 August 2014 in matter Burns v Corbett [NSWSC 28109/2014] in the Certificates List”.
- At the interlocutory hearing the applicant was represented by Mr Balzola. The applicant was contacted by telephone and advised that she could participate in and/or listen to the proceedings. However, the applicant requested I terminate the call, on the basis I would ring her again should any relevant issue arise that might require her to give instructions to her solicitor.
- Mr Balzola spoke to and expanded his written submissions which I accepted as an aide memoire. Mr Rodney, solicitor, made oral submissions on behalf of the respondent. I afforded Mr Balzola the opportunity to provide written submission in reply as there was insufficient time for him to do so orally. I also ordered that Mr Balzola file any submissions on which he sought to rely in respect of the contempt application by 14 August 2015. I reserved my decision in respect of the interlocutory applications.
- I propose to discuss the merits of the interlocutory application by reference to the issues identified earlier in these reasons, albeit there are necessarily overlaps in the matters discussed.
Is the applicant statutorily barred from bringing the appeal? If not, has the applicant, in accordance with relevant principles, established that she should be granted an extension of time in which to appeal and or to seek leave to appeal on other grounds?
- It is clear from the terms of s 32 that the applicant is precluded from bringing an internal appeal against the decision of the appeal panel of 2014. But the applicant seeks to effectively “by-pass” that provision by seeking to again appeal the 2013 orders of the ADT.. The applicant also seeks to challenge the validity of the Certificate issued under s 114 of the Civil and Administrative Tribunal Act because of an asserted error in the spelling of the respondent’s name in the certificate, albeit at the same time seeking to challenge the validity of that certificate in the Supreme Court.
- The principal thrust of the submissions made on behalf of the applicant is that she was denied procedural fairness in the 2013 because she was not, as a self-represented litigant, warned by the Tribunal of three matters:
- that she should obtain legal representation;
- that the respondent had filed material which was potentially adverse to her; and
- if she did not appear the Tribunal may make a decision adverse to her.
- Ancillary to the assertions above, Mr Balzola further submits that the Tribunal is itself bound by the Model Litigant Guidelines, (semble the NSW Model Litigants Policy) and he relies on the decision of Croft J in Comaz (Aust) Pty Ltd v Commissioner of State Revenue  VSC 294.
Is it necessary at this point of time for the Tribunal to make any orders about the spelling of the respondent’s first given name?
- Mr Rodney submits that, if there is any error in the Certificate issued under s 114 of the Anti-Discrimination Act, that may be corrected under s 63 of theCivil and Administrative Tribunal Act. The terms of s 114 are clear. That section empowers the Tribunal to issue a certificate that may be registered in the Supreme Court to facilitate enforcement. Section 114 is in the following terms:
114 Enforcement of non-monetary orders
(1) This section applies to an order, or part of an order, of the Tribunal other than an order, or part of an order, for the recovery of an amount ordered to be paid by the Tribunal or a civil or other penalty ordered to be paid by the Tribunal.
(2) For the purpose of enforcing an order, or part of an order, to which this section applies, a registrar of the Tribunal may certify the making of the order, or part, and its terms.
(3) A certificate of a registrar of the Tribunal under this section that is filed in the registry of the Supreme Court operates as a judgment of that Court.
(4) Nothing in this section limits or otherwise affects section 78 of the Civil and Administrative Tribunal Act 2013.
- Section 63 of the Civil and Administrative Tribunal Act provides:
63 Power to correct errors in decisions of Tribunal
(1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member.
(2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal’s decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct.
(3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where:
(a) there is an obvious clerical or typographical error in the text of the notice or statement, or
(b) there is an error arising from an accidental slip or omission, or
(c) there is a defect of form, or
(d) there is an inconsistency between the stated decision and the stated reasons.
- Section 5 of the Civil and Administrative Tribunal Act defines the meaning of “decision”. It includes the giving of a certificate. The relevant decision of the Tribunal requires the applicant to give a written apology to the respondent who is named as Mr Garry Burns. The Board in its correspondence to the Tribunal in 2013 referred to receipt of a complaint by Mr Garry Burns. Correspondence on the relevant Tribunal file disclosed that the respondent communicated in writing with the Tribunal on various occasions and signed his name above typed words “Mr Garry Burns”.
- However, the certificate issued by the Registrar names the applicant as Mr Gary Burns but correctly records the Tribunal order which includes the requirement that the applicant write a letter of apology to Mr Garry Burns.
- In the present contempt proceedings the respondent’s solicitors name him as “applicant” using the spelling “Garry” for his first name.
- The file however discloses that the respondent wrote to the President of the Board on 31 January 2013 and concluded his letter with the typewritten description “Gary Burns”. It is unclear to me whether the respondent in the period between January 2013 and the present adopted a change of name, or whether the Board made a typographical error in the spelling of his given name. If there has been a typographical error, and the 2013 reasons and decision should read Gary rather than Garry for the purpose of the required apology, I am satisfied that the decision certificate under s 114 can be amended by application to the Registrar. Certainly, the inconsistency in the spelling of the respondent’s first given name in the certificate appears necessary.
- I note the submissions on this topic could be said to apply equally to documents filed by the applicant given that in those documents she is described with a given name of “Tess” and that she wrote to the Registrar of the ADT on 7 February 2014 using a typed name of Therese Corbett. In her Notice of Appeal in the 2014 appeal the applicant is described as “Therese Maree Corbett”.
- I am not satisfied on the state of the evidence now before me that it is appropriate I make any orders about either party’s name. The issue should be determined if necessary by both parties filing an application and evidence in support to request amendment to any Tribunal decision.
As is submitted on behalf of the respondent, is the Tribunal functus officio and/or is the subject matter of the litigation finally concluded between the parties in the Tribunal such that the doctrine of res judicata applies.
- I turn now to the substantial question of whether or not the Tribunal has jurisdiction to entertain a second appeal in respect of the 2013 decision.
- It is clear that the applicant exercised her right to appeal against the 2013 decision. In that appeal she was legally represented and was granted leave to file a statement in which she explained why she did not attend the hearing and her belief in respect of the effect of the NSW legislation. The Appeal Panel rejected this evidence noting “There was no suggestion that this evidence was not available at the time of the hearing”.
- I am satisfied that the applicant has exercised her appeal rights, and any argument that she may wish to raise in respect of procedural fairness is a matter to be raised in an application for an extension of time to seek leave to file an appeal to the Supreme Court of NSW against the dismissal of her appeal, or to seek judicial review.
- I am fortified in this view having regard to the discussion found in Australian Civil Procedure 10th ed. Cairns (Thomson Reuters) particularly at 6.130 (see also Cross on Evidence JD Heydon at  ). I also take into account the discussion in Metwally v University of Wollongong  HCA 28 60 ALR 68; 59 ALJR 481 where the High Court, having noted that the case before it was not “a case in which an order has been made against a party who was not heard”, said:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
- While the applicant was not present at the primary hearing that was a deliberate choice she made. There is no doubt from her statement tendered at the appeal she was well aware of the hearing date. I further note she was provided with information in correspondence from the Tribunal about procedure at a case conference held prior to the hearing. She was represented by counsel at the appeal and had the opportunity to raise any issue relating to procedural fairness she wished to agitate.
- I am satisfied it would be an abuse of process under s 55 to permit a second appeal to go forward and this case does not fall within the “exceptional circumstance” type of matter referred to by the High Court in Metwally. The applicant has a remedy if she wishes to agitate it by seeking an extension of time to seek leave to appeal the appeal panel’s decision to the Supreme Court of NSW on a question of law.
- It follows having determined that to allow a further appeal (even if filed in time which this application is not) it is strictly unnecessary for me to consider both remaining interlocutory orders sought. However, in the event I am wrong about the right to bring a second appeal, I propose to discuss the other issues raised albeit briefly.
- I now consider whether on the evidence before me, the applicant has demonstrated she should be granted an extension of time in which to appeal and to seek leave to appeal the 2013 orders.
Relevant law principles – extension of time to appeal
- The principles to be applied on such an application are not in doubt. They are usefully set out in [18-22] in Jackson as follows:
Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the Act that the guiding principle for the Act “is to facilitate the just, quick and cheap resolution of the real issue in the proceedings“.
An informative exposition of the role and nature of provisions which permit a Court or Tribunal to extend the time limits established for the orderly conduct of proceedings, including the time in which to lodge an appeal, is found in the decision of McHugh J sitting as a single justice of the High Court in Gallo v Dawson HCA 30, 93 ALR 479 at :
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262. 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: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. 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 applicant succeeding in the appeal: see Burns v. Grigg (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v.Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
The Courts have identified in numerous cases various factors that should be considered in deciding whether to grant an extension of time in which to appeal. Substantially the same principles have also been applied by the Appeal Panel of the Administrative Decisions Tribunal (ADT), one of the predecessors of the Tribunal, in relation to appeals in the ADT – Opera Australia Ltd v Carr  NSWADTAP 6 at , Chand v Rail Corporation of New South Wales No 3  NSWADTAP 11 at . These authorities provide useful guidance on the principles that are to be applied by the Appeal Panel in this regard.
Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawsonquoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant’s favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice.
The considerations that will generally be relevant to the Appeal Panel’s consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:
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 appellant – Gallo v Dawson  HCA 30, 93 ALR 479 at , Nanschild v Pratt  NSWCA 85 at ;
The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a “vested right” to retain the benefit of that decision – Jackamarra v Krakouer (1998) 195 CLR 516 at , Nanschildv Pratt  NSWCA 85 at  and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success – Jackamarra at ;
Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:
The length of the delay;
The reason for the delay;
The appellant’s prospects of success, that is usually whether the applicant has a fairly arguable case; and
The extent of any prejudice suffered by the respondent (to the appeal),
– Tomko v Palasty (No 2) (2007) 71 NSWLR 61at  (per Basten JA) but note also , Nanschild v Pratt  NSWCA 85 at  to ; and
It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable – Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at  (per Hodgson JA, Ipp JA agreeing at ) and Molyneux v Chief Commissioner of State Revenue  NSWADTAP 53 at  – .
Discussion – extension of time to appeal
- The delay since the 2013 orders is significant being a period of approximately 22 months. The reasons advanced for the delay are set out in paragraph 12A of the Notice of Appeal. They are:
- The appellant has only recently obtained the services of legal advice to assist in her matter on a pro bono basis.
- It is in the interests of justice that a decision fundamentally stained by manifest denial of procedure fairness be remedied.
- I do not accept the first argument advanced by the applicant. Her statement relied on before the appeal panel and her representation on the hearing of the appeal demonstrates that she had and obtained legal advice in 2014. There is simply no plausible explanation of why a further period of a year elapsed before this application was filed.
- In respect of her second argument I have already noted that she has had the benefit of appeal rights to the appeal panel in which she was able to argue any breach of the rules of natural justice and procedural fairness. She had a right to seek leave to appeal the internal appeal panel decision to the Supreme Court within the time provided in the rules but it appears on the evidence before me, that she chose not to do so. She may still seek an extension of time to do so.
- I am satisfied that because the applicant still has a remedy, namely the right to seek an extension of time to seek leave to appeal in the Supreme Court the refusal to grant an extension of time in which to appeal the 2013 orders will not cause her substantial prejudice.
- I also note that applicant’s application refers to the adducing of new evidence going to statutory defences under s 49 ZS and s 49ZT of the Anti-Discrimination Act and evidence sought to be adduced going to constitutional issues and rights of political expression at a hearing de novo. I note that the interpretation of “defences” under s 49 ZT was extensively argued before the appeal panel in the applicant’s internal appeal as was the question of implied right of political communication.
- At its highest the applicant’s case is that she may succeed on a constitutional issue if she satisfies another appeal panel that she was denied procedural fairness at the 2013 hearing. It is hard to see how the ADT could be said to have erred in not affording the applicant procedural fairness, when knowing full well the proceedings were listed for hearing, she took no steps at all to contact the Tribunal but simply chose to ignore the Tribunal’s correspondence to her including an information sheet about participation in a case conference (which could have occurred by telephone).
- I accept that when a party does not have notice of a hearing or may for some significant reason such as serious ill-health (as occurred in the factual situation in Allesch v Maunz 2000 HCA 40; 203 CLR 172) it may be appropriate to set aside an order made in that party’s absence. I also accept that in accordance with the duties owed by a court to a self-represented litigant a tribunal has a like duty. So much is clear from the many authorities dealing with the question of treatment of self-represented litigants including the decision of Croft J in Comaz. But the facts in Comaz are readily distinguishable from the present facts.
- In Comaz the departure from the rules of natural justice and procedural fairness arose because of the nature of the member’s questioning of a witness, the manner in which the proceedings were conducted, and the failure to warn a litigant in person of the likelihood of the drawing of an adverse inference because of a failure to adduce evidence from a crucial witness. The claims of lack of procedural fairness were exacerbated because of the manner in which a government body, as a model litigant before the tribunal, in its final submission first raised a Jones v Dunkel point without affording the self-represented party notice of its intention to do so, or for the presiding member to permit a re-opening by the applicant to meet that submission. Here the applicant with notice of the hearing in 2013 made a deliberate decision not to appear. It was at all times prior to the hearing within her capacity to contact the registry staff and to seek advice about the hearing including alternate means for her to participate in the hearing, and/or to file a statement asserting her belief that the Tribunal had no jurisdiction. She chose to take neither of those steps.
Should the Tribunal grant a stay of the 2013 orders?
- I have already noted that the applicant is not entitled to agitate a second appeal to the internal appeal panel. As a separate matter, I have found the applicant has not, in accordance with well-defined principles, satisfied the onus she bears, even if she had a right to a second appeal, to an extension of time in which to bring such an application.
- It follows therefore that it is unnecessary that I deal with her application for a stay of the 2013 orders.
Does the model litigant policy apply to the Tribunal as well as parties before it.
- Mr Balzola in his submissions in reply at  states:
It was open and necessary in the full discharge of the Tribunal’s obligations as a Model Litigant, acting solely upon the referral power conferred to it by s 93C of the Anti-Discrimination Act and its powers therein, to implement procedural fairness upon the party to whom that fairness was owed.
- It is unnecessary that on this interlocutory application I deal with this issue as it is not a justiciable matter before me. I merely note that the policy annexed to Mr Balzola’s submissions applies to the State and its agencies when litigating before Courts and Tribunals. It is a policy that affects agencies such as the Health Care Complaints Commission when that Commission refers proceedings to the Tribunal and then prosecutes such proceedings in the Tribunal. The Tribunal is not the State nor is it an agency of the state. It is, as the objects of the Civil and Administrative Tribunal Act record, an “independent” Tribunal charged with making decisions, reviewing decisions, determining some appeals against decisions and exercising such other functions as are conferred on it by legislation.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
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