Ekermawi v Administrative Decision Tribunal

[2011] NSWSC 1503

Supreme Court

New South Wales

Medium Neutral Citation:

Ekermawi v Administrative Decision Tribunal [2011] NSWSC 1503

Hearing dates:

1 December 2011

Decision date:

01 December 2011

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Proceedings commenced by summons of 20 October 2011 is dismissed.

2. The Plaintiff is to pay the Second, Third and Fourth Defendants' costs on the ordinary basis up to and including 9 November 2011 and thereafter on an indemnity basis

Catchwords:

ADMINISTRATIVE LAW - appeal from Administrative Decisions Tribunal - whether right of appeal to Supreme Court - appeal from Appeal Panel of ADT - appeal to Court of Appeal.

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Supreme Court Act 1970

Cases Cited:

AVS Group of Companies v Commissioner of Police [2010] NSWCA 81
Ekermawi v Harbour Radio; Ekermawi v Nine Network [2010] NSWADT 145
Ekermawi v Harbour Radio; Ekermawi v Nine Network (No 2) 2010, NSWADT 198
Ekermawi v Harbour Radio, Ekermawi v Nine Network (EOD) [2011] NSWADTAP 44

Category:

Principal judgment

Parties:

Sam Ekermawi (Plaintiff)
Administrative Decision Tribunal (First Defendant)
Alan Jones (Second Defendant)
Harbour Radio Pty Ltd (Third Defendant)
Nine Network Australia Pty Ltd (Fourth Defendant)

Representation:

Sam Ekermawi (Plaintiff - in person)
Submitting appearance (First Defendant)
K Eastman (Second - Fourth Defendants)
Sam Ekermawi (Plaintiff - in person)
Crown Solicitor's Office (First Defendant)
Baker & McKenzie (Second - Fourth Defendants)

File Number(s):

2011/335510

 Decision under appeal 

Jurisdiction:

9113

Citation:

Ekermawi v Harbour Radio Pty Ltd, Ekermawj v Nine Network Television Pty Ltd [2010] NSWADT 145
Ekermawi v Harbour Radio Pty Ltd & Ekermawi v Nine Network Television Pty Ltd
(No 2) [2010] NSWADT 198

Date of Decision:

2010-06-10 00:00:00

Before:

Chesterman M - Deputy President Kelleghan D - Non-Judicial Member Schneeweiss J - Non-Judicial Member

Judgment

1. These proceedings commenced by a summons dated 20 October 2011 entitled 'Leave to Appeal Part 50'. They name as Defendants, the Administrative Decisions Tribunal, Alan Jones, Harbour Radio Pty Limited and Nine Network Television Pty Limited.

1. The Court below is said to be the Administrative Decision Tribunal, the dates of hearing are given as 31 November, 1 and 2 December, 2009 and 21 July 2010. The material dates are said to be 10 June 2010, 4 August 2010. The decision makers are said to be Deputy President Chesterman, Member Kelleghan and Member Schneeweiss.

1. The orders sought are for leave to extend the time of appeal from the whole of the decision below, that the appeal be allowed, that the judgments of the Court below be set aside, that the matter be remitted to the Administrative Decision Tribunal, and that Alan Jones be joined to the proceedings. The last order appears to be sought on the basis that Mr Jones was not in fact a party in the Administrative Decisions Tribunal.

1. The Tribunal has filed a submitting appearance. The other Defendants seek by Notices of Motion dated 2 November 2011 to have the proceedings dismissed on the basis that this Court has no jurisdiction to hear the proceedings.

1. The background is briefly this: The Plaintiff lodged two complaints under the Anti-Discrimination Act 1977 alleging racial vilification by the Second and Third Defendants in this Court respectively. The President of the Anti-Discrimination Board, pursuant to the procedure in the Anti-Discrimination Act, dismissed both complaints at different times on the grounds that the complaints lacked substance. The Plaintiff sought the referral of the complaints to the ADT in accordance with the Act.

1. Ultimately, after some interlocutory problems, both complaints came before the ADT for hearing on 30 November 2009. They were heard over a three-day period. On 10 June 2010 the ADT dismissed the complaints: Ekermawi v Harbour Radio; Ekermawi v Nine Network [2010] NSWADT 145.

1. The Plaintiff had a 28-day period under the Act to appeal from that judgment. He did not appeal within the time prescribed.

1. On 4 August 2010 the ADT issued further reasons for an order that the Plaintiff pay the Second and the Third Defendants' costs : Ekermawi v Harbour Radio; Ekermawi v Nine Network (No 2) [2010] NSWADT 198.

1. Again, the appeal period from that judgment expired with no appeal being lodged by the Plaintiff. On 18 July 2011 the Plaintiff filed a Notice of Appeal seeking to appeal both the earlier judgments of the ADT given on 10 June and 4 August 2010.

1. Leave to appeal was required because the appeals were out of time. The application for leave was heard. On 6 October 2011 the Appeal Panel handed down its decision and refused leave to appeal: Ekermawi v Harbour Radio, Ekermawi v Nine Network (EOD ) [2011] NSWADTAP 44. It appears to have been that judgment which prompted the Plaintiff to file the present summons.

1. Section 113 of the Administrative Decisions Tribunal Act 1997 provides:

113 Right to appeal against appealable decisions of the Tribunal

(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.

1. It is apparent from that section that the only right of appeal from a decision of the Tribunal is an appeal to an Appeal Panel. There is no common law right of appeal from any judgment of a court. Any rights of appeal must be provided by statute. Section 113 is the only statutory right of appeal from a decision of the Tribunal.

1. Section 119 of the Administrative Decisions Tribunal Act gives to a party to proceedings before an Appeal Panel of the Tribunal, certain rights of appeal to the Supreme Court:

119 Right of appeal to Supreme Court

(1) A party to proceedings before an Appeal Panel of the Tribunal may appeal to the Supreme Court, on a question of law, against any decision of the Appeal Panel in those proceedings.

(1A) Despite subsection (1), an appeal does not lie to the Supreme Court against any of the following decisions of the Appeal Panel except by leave of the Supreme Court:

(a) an interlocutory decision,

(b) a decision made with the consent of the parties,

(c) a decision as to costs.

1. Any such appeal to the Supreme Court is then governed by s 48 of the Supreme Court Act 1970:

1)

(a) In this section:

specified tribunal means:

...

(viii) an Appeal Panel or the Legal Services Division of the Administrative Decisions Tribunal.

...

(2) There are assigned to the Court of Appeal proceedings in

the Court:

...

(f) on an appeal from a specified tribunal,

...

(ha) for determining any question of law referred to the Court for its opinion under the Administrative Decisions Tribunal Act 1997,

1. It is apparent from s 48 that because the Appeal Panel of the Administrative Decisions Tribunal is a specified Tribunal, any appeal rights that a person can exercise from the Appeal Panel must go directly to the Court of Appeal. This was recently confirmed by a decision of the Court of Appeal in AVS Group of Companies v Commissioner of Police [2010] NSWCA 81 at [33].

1. It is apparent from the summons itself that the appeal in the summons filed by the Plaintiff is an appeal from the Administrative Decisions Tribunal and its decisions of 10 June 2010 and 4 August 2010. Section 113 only gives a right of appeal to the Appeal Panel of the Tribunal. That in itself makes the summons an inappropriate vehicle for bringing an appeal to this Court in any of its divisions. If, as the Plaintiff appears to submit, it is intended to be an appeal from the Appeal Panel's decision of 6 October 2011 (all of the matters referred to in para [2] above suggest otherwise) the appeal should have been commenced in the Court of Appeal. In either case the present summons is misconceived and must therefore be dismissed.

1. The Defendants ask for costs. Those costs are resisted by the Plaintiff in the matter, principally on the basis that he is a litigant in person and the proceedings that he brings are public interest proceedings.

1. There is no evidence before me, apart from a reading of the judgments in the Tribunal both at first instance and on the Appeal Panel, to demonstrate that the proceedings that have been brought are in fact public interest proceedings. Even if I held that they were, I would not, in my discretion in relation to costs, fail to order costs in favour of the Defendants in the present matter when this is in effect the third attempt on the part of the Plaintiff to obtain the relief that he sought originally from the President of the Anti-Discrimination Board. It might be appropriate in some circumstances to have regard to the public interest nature of proceedings when the matter is first being dealt with and the Plaintiff is unsuccessful, but in my opinion it is quite inappropriate that the Plaintiff should be allowed to go on appealing time after time and not expect to have to pay the costs of the successful party.

1. In any event, after the filing of the summons, the solicitors for the Defendants wrote on 2 November 2011 to the Plaintiff, setting out why they said the summons that had been brought was misconceived. The matters that are set out there are in substance the reasons that I have provided for dismissing the proceedings. The letter offered the Plaintiff seven days to agree to the summons being dismissed, in which case the Defendants would bear their own costs of the proceedings. That, in the first instance, is at least some answer to the Plaintiff's claim that because he is a litigant in person and made a mistake about where he should have commenced these proceedings, he should not be punished with a costs order.

1. Of course the purpose of costs is not to punish but to compensate the successful party. Further, in all of the circumstances, and because the basis for showing the Plaintiff that his proceedings were doomed to failure were set out in some detail in the letter, I consider in this case that it is appropriate to order that he pay costs on an indemnity basis from 9 November 2011, being seven days after the date of that letter.

1. The orders that I make therefore are:

(1) The proceedings commenced by summons of 20 October 2011 is dismissed.

(2) The Plaintiff is to pay the Second, Third And Fourth Defendants' costs on the ordinary basis up to and including 9 November 2011, and thereafter on an indemnity basis.

oOo