Lin v American International Assurance Company (Australia) Ltd (EOD)

[2005] NSWADTAP 30

Appeal Panel - Internal

CITATION:	Lin v American International Assurance Company (Australia) Ltd (EOD) [2005] NSWADTAP 30
PARTIES:	APPELLANT Ping Lin (Peter Lin) RESPONDENT American International Assurance Company (Australia) Ltd
FILE NUMBER:	059024
HEARING DATES:	3/05/2005
SUBMISSIONS CLOSED:	05/03/2005
DATE OF DECISION:	05/03/2005
DECISION UNDER APPEAL:	Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	interlocutory decision - leave to appeal
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	031102
DATE OF DECISION UNDER APPEAL:	06/21/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Supreme Court Act 1970
CASES CITED:	Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59
REPRESENTATION:	APPELLANT I Archibald, barrister RESPONDENT P Kennedy, solicitor
ORDERS:	Application for leave to appeal refused

1 The application for leave is refused. I note that the Court of Appeal has a similar jurisdiction to this that is set out in s 101 of the Supreme Court Act 1970 and one of the notes there in the commentary is to the effect that reasons are not routinely given in matters of these kind because it is more or less a matter of impression as to whether leave should be granted. Nevertheless I will give some short reasons as this is the first matter of this kind to come under the consideration of the Appeal Panel.

2 The background is that it is an application for leave to appeal from an interlocutory decision of the Tribunal and that interlocutory decision was to refuse an application by Mr Lin for a fresh summons to be issued against the respondent, American International Assurance Company (Australia) Limited.

3 Some of the background of that application is set out in the Tribunal’s decision, that is Lin v American International Assurance Company (Australia) Pty Limited [2005] NSWADT 59. The underlying complaint alleges that the respondent discriminated against Mr Lin on the ground of race in relation to his employment. The short procedural history relating to this matter is that in October 2003 the applicant issued a summons which it now admits was incomplete in that it did not ask for documents relating to agents who did not receive promotion or who were demoted. I refer to those documents in these reasons as the disputed documents.

4 Discussions were held between the applicant and the respondent in an attempt to modify the scope of the summons and the applicant subsequently filed its points of claim. It was not until June 2004 that the applicant issued a second summons requesting the disputed documents. The respondent applied for that summons to be set aside and the Tribunal did set aside parts of the summons, in particular paragraph two which related to the disputed documents. Consequently the situation in August 2004 was that the applicant had a decision from the Tribunal that it could not ask for those documents. It did not appeal against the decision and that’s an important matter in terms of this leave application but instead waited until the respondent filed an application under s 111 of the Anti Discrimination Act 1977 for the applicant’s complaints to be dismissed as lacking in substance. At the same time the applicant applied for a fresh summons to be issued for the disputed documents. The Tribunal refused that application and the applicant now seeks leave to appeal against that refusal.

5 The relevant provision is s 113(2)A of the Administrative Decisions Tribunal Act 1997 which provides an exception to the right that appellants generally have to appeal against appealable decisions of the Tribunal. The exception relates to interlocutory decisions and provides that an appeal does not lie to the appeal panel against an interlocutory decision of the Tribunal except by leave of the Appeal Panel. As I said during the course of submissions, as far as I am aware this is the first application of its kind that has come before the Appeal Panel since the Act was amended earlier this year.

6 In deciding how to approach the question of leave, I have been guided by the Court of Appeal’s interpretation of a similar provision, that is s 101 of the Supreme Court Act 1970. The first matter that I have to be satisfied of, and there was no dispute as to this, was that the matter was an interlocutory matter. Obviously it does not finally dispose of the rights of the parties merely relates to a procedural step in the preparation of the matter for hearing. The High Court has said that it is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the granting of leave to appeal but Mr Archibald suggested that one factor that the Appeal Panel should consider is whether the appeal has reasonable prospects of success.

7 Assuming that that is a relevant consideration the appellant pointed to paragraph 20 of the Tribunal’s reasons in which the Tribunal suggested that the applicant had not provided any evidence that the documents existed. Mr Archibald pointed out that there is no legal obligation on the applicant to do so and while I agree with that proposition the Tribunal’s remark was made in the context of the fact that the respondent denied that it held any further documents requested in the first summons as subsequently modified. It is not a matter for the Appeal Panel when considering this leave question to make any final determination on that question. Secondly the applicant said that the Tribunal had erred by saying that the applicant was hoping to find evidence when in fact the application was not based on hope but on his understanding that the documents exist and are relevant to the proceedings.

8 In summary the appellant said that leave should be granted because he had been attempting since October 2003 to obtain the disputed documents while admitting that he made a mistake in drafting the first summons. His submission was that he should not be penalised for that mistake or indeed for not appealing against the Tribunal’s decision setting aside the summons. On the other hand Mr Kennedy for the respondent said that the applicant failed to appeal against the Tribunal’s decision in August 2004 setting aside the second summons and had provided no reason for his failure to do so. Instead he waited until the respondent applied for the matter to be dismissed and then applied for a fresh summons to be issued. According to the respondent the Tribunal is entitled to case manage its proceedings and the applicant has had ample opportunity to request the disputed documents.

9 In this case I have no hesitation in refusing the applicant’s application for leave. That decision is based partly on the fact that the applicant has had ample opportunity to request the disputed documents and to negotiate with the respondent as to the production of those documents. Obviously he could have acted much more quickly, instead he has let the matter lie for a considerable period of time before raising it again before the Tribunal.

10 In those circumstances, and even taking into account Mr Archibald’s submissions about reasonable prospect of success, I do not accept that the appeal has reasonable prospects of success. In any case I exercise my discretion to refuse leave because of the applicant’s inaction and the fact that the complaint has been here at the Tribunal since August 2003 and the timetable for hearing is yet to be completed.