Ekermawi v Harbour Radio Pty Ltd (EOD) - [2011] NSWADTAP 44

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 2004
Cases 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 499
Category: 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWADTAP 44
Decision Date: 06 October 2011

CaseChat Overview and Summary

The appellant, Ekermawi, sought leave to appeal out of time the decisions of the Administrative Decisions Tribunal of New South Wales. The decisions involved the appellant's claims against Harbour Radio and Nine Network Television. The Tribunal had dismissed the appellant's claims on the merits. The appellant applied for leave to appeal the Tribunal's decisions, which were initially dismissed on 21 September 2010 and 19 October 2010, respectively.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 2004
Cases 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 499
Category:	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