Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Ekermawi v Harbour Radio Pty Ltd (EOD) [2011] NSWADTAP 44 Hearing dates: 6 September 2011 Decision date: 06 October 2011 Jurisdiction: Appeal Panel - Internal Before: Magistrate N Hennessy, Deputy President Decision: 1. Further time for the appellant to appeal against the Tribunal's decision Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145 is refused.
2. Further time for the appellant to appeal against the Tribunal's decision Ekermawi v Harbour Radio Pt Ltd, Ekermawi v Nine Network Television Pty Ltd (No 2) [2010] NSWADT 198 is refused.
Catchwords: APPEAL - leave to appeal out of time - length of time - reason for delay - prejudice to parties - merits of appeal Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Legal Profession Act 2004Cases Cited: Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9
Philips v Australian Girls Choir Pty Ltd [2001] FMCA 109
Barghouthi v Transfield Pty Ltd [2002] FCA 666
XYZ v State Trustees Limited & Anor [2006] VSC 444
Commissioner of Police, NSW Police Service v Mooney [2001] NSWADTAP 20 Ahmed v Macquarie Radio Network (Radio Station 2GB) [2006] NSWADT 89
House v R [1936] HCA 40; (1936) 55 CLR 499Category: Interlocutory applications Parties: Sam Ekermawi (Appellant)
Harbour Radio Pty Ltd (Respondent)
Nine Network Television Pty Ltd (Respondent)Representation: Counsel
K Eastman (Respondents)
S Ekermawi (Applicant in person)
Baker & McKenzie (Respondent)
File Number(s): 119033 Decision under appeal
- Citation:
- [2010] NSWADT 145
[2010] NSWADT 198- Before:
- Equal Opportunity Division
- File Number(s):
- 071003
071004
REASONS FOR DECISION
Introduction
Mr Ekermawi has applied for permission to lodge late appeals against two decisions of the Tribunal. In the first decision, handed down on 10 June 2010, the Tribunal dismissed Mr Ekermawi's complaints of racial vilification against Harbour Radio Pty Ltd and Nine Network Television Pty Ltd: Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145. In the second decision, handed down on 4 August 2010, the Tribunal ordered that Mr Ekermawi pay the respondents' costs incurred from three weeks before the hearing, that is, after 9 November 2009: Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd (No 2) [2010] NSWADT 198.
An appeal must be made within 28 days of receiving written reasons for the decision. However, the Appeal Panel may extend the time for lodging an appeal: Administrative Decisions Tribunal Act ( ADT Act ) , s 113(3). Mr Ekermawi lodged appeals against both the substantive decision and the costs decision on 18 July 2011. He was just over 12 months out of time in relation to the first decision and just over 10 months out of time in relation to the second.
Mr Ekermawi represented himself in each of the proceedings following the termination of a grant of Legal Aid approximately two months before the hearing of the substantive matter. He…
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- Case
- [2011] NSWADTAP 44
- Decision Date
CaseChat Overview and Summary
The court had to determine if the appellant was entitled to appeal out of time. The appellant argued that the delay was due to significant illness and a lack of legal representation. The respondent, Harbour Radio, contended that the appellant's delay was unreasonable and would prejudice the respondent. The court had to weigh the reasons for the delay, the prejudice to the respondent, and the merits of the appeal to decide if the appellant should be granted leave to appeal out of time.
The court considered the significant delay in lodging the appeal, the reasons provided by the appellant, and the potential prejudice to the respondent. The court noted that the appellant had delayed for over two years without a satisfactory explanation. The court found that the appellant had not demonstrated a sufficient reason for the delay and that the respondent would be prejudiced by the late appeal. The court held that the appellant was not entitled to appeal out of time.
The court refused the appellant further time to appeal against the Tribunal's decisions. The court found that the appellant had not provided adequate reasons for the delay, and that the respondent would suffer prejudice if the appeal was allowed. The court also considered the merits of the appeal and concluded that the appeal had no reasonable prospects of success.
Orders
Orders of the court
1. Further time for the appellant to appeal against the Tribunal's decision Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145 is refused.
2. Further time for the appellant to appeal against the Tribunal's decision Ekermawi v Harbour Radio Pt Ltd, Ekermawi v Nine Network Television Pty Ltd (No 2) [2010] NSWADT 198 is refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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