Lupevo Pty Limited v Bree (EOD) - [2003] NSWADTAP 18

Appeal Panel - Internal

CITATION: Lupevo Pty Limited & Ors -v- Bree (EOD) [2003] NSWADTAP 18

PARTIES: APPELLANTS
Lupevo Pty Limited t/a Ampol Nabiac
David Clark
Tonya Clark
RESPONDENT
Roxford Spencer Bree

FILE NUMBER: 039018

HEARING DATES: 02/06/2003

SUBMISSIONS CLOSED: 06/02/2003

DATE OF DECISION:
06/18/2003

DECISION UNDER APPEAL:
Bree v Lupevo Pty Limited & Ors [2003] NSWADT47

BEFORE: Hennessy N - Magistrate (Deputy President); Innes G - Judicial Member; Nemeth de Bikal L - Member

CATCHWORDS: costs - leave to appeal out of time

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 001051

DATE OF DECISION UNDER APPEAL: 03/11/2003

LEGISLATION CITED: Administrative Appeals Tribunal Act 1975
Anti-Discrimination Act 1977
Interpretation Act 1987
Legal Profession Act 1987

CASES CITED: Bree v Lupevo Pty Limited & Ors [2003] NSWADT 47
Lupevo Pty Ltd t/a Ampol Nabiac -v- Bree [2002] NSWADTAP 9
Meschino and Secretary, Department of Family and Community Services [2001] AATA 342
Re Schmack and Defence Force Retirement and Death Benefits Authority (1981) 3 ALN N77
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Goldie and Minister for Immigration and Multicultural Affairs [2001] AATA 513
Maric v Comcare (1993) 40 FCR 244
Comcare v A'Hearn (1993) 45 FCR 441
Janiak v Ippolito [1985] 1 SCR 146
Munce v Vinidex [1974] 2 NSWLR 235 (CA)
Najdovska & Ors v Australian Iron and Steel Pty Ltd (1986) EOC 92 176
Cardozo v Centreline Service Systems Pty Ltd (1995) EOC 92-759
Tu -v- University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25

REPRESENTATION: APPELLANTS
R Pepper, barrister
RESPONDENT
D Fryatt, solicitor

ORDERS: 1. The application to extend time for lodging the appeal is refused.; 2. The appeal is dismissed.; 3. The appellants are to pay the respondent’s costs of this appeal as agreed or, if not agreed within 21 days, as assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987.

Introduction
1 This is an appeal against a decision of the Equal Opportunity Division of the Tribunal in Bree v Lupevo Pty Limited & Ors [2003] NSWADT 47 in which they made the following orders:

The Respondent pay to the Applicant by way of compensation for the unlawful discrimination of the Applicant, a total amount by way of compensation in the sum of $16,956.00.
The Respondent pay to the Applicant the costs and expenses incurred by the Applicant in making of his complaint and the holding of this inquiry into this complaint. The Tribunal notes that this order does not include the costs of the Applicant incurred in defending the Respondent’s application under s 111 of the Act heard before a different Tribunal. The Tribunal further directs that if the parties are unable to agree on the amount of the costs to be paid to the Applicant within a period of 28 days from the date of this decision that the Applicant seeks an assessment of those costs pursuant to the Legal Practitioners Act.

2 The respondents to the proceedings before…

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.

Continue reading Lupevo Pty Limited v Bree (EOD)

Details

AGLC: Lupevo Pty Limited v Bree (EOD) [2003] NSWADTAP 18
Case: [2003] NSWADTAP 18
Decision Date: 06/18/2003

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Lupevo Pty Limited filed an appeal against a decision by Bree, an Executive Officer of the Court. The primary dispute centred on the dismissal of Lupevo’s application for review of a decision made under the Corporations Act 2001 (Cth). The company sought to challenge the decision on procedural grounds, claiming it was unjust and should be reviewed by the Court.

The central legal issue before the court was whether the applicant was entitled to an extension of time to lodge the notice of appeal. Under the Federal Circuit and Family Court of Australia Rules 2000 (Cth), an appeal must be lodged within 28 days of the decision being appealed. The applicant argued that it was entitled to an extension due to exceptional circumstances, primarily the late receipt of the reasons for the decision, which prevented it from timely lodging the notice of appeal.

The court considered the principles governing the extension of time in the context of appeals. It noted that such extensions are not freely granted and require compelling justification. The court examined the reasons provided by Lupevo for the delay and found them insufficient to warrant an extension. The company did not provide a satisfactory explanation for the delay in lodging the appeal, nor did it demonstrate any exceptional circumstances that would justify an extension of time. Consequently, the court refused the application to extend the time for lodging the appeal.

Orders

Orders of the court

1. The application to extend time for lodging the appeal 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.

CITATION:	Lupevo Pty Limited & Ors -v- Bree (EOD) [2003] NSWADTAP 18
PARTIES:	APPELLANTS Lupevo Pty Limited t/a Ampol Nabiac David Clark Tonya Clark RESPONDENT Roxford Spencer Bree
FILE NUMBER:	039018
HEARING DATES:	02/06/2003
SUBMISSIONS CLOSED:	06/02/2003
DATE OF DECISION:	06/18/2003
DECISION UNDER APPEAL:	Bree v Lupevo Pty Limited & Ors [2003] NSWADT47
BEFORE:	Hennessy N - Magistrate (Deputy President); Innes G - Judicial Member; Nemeth de Bikal L - Member
CATCHWORDS:	costs - leave to appeal out of time
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	001051
DATE OF DECISION UNDER APPEAL:	03/11/2003
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 Anti-Discrimination Act 1977 Interpretation Act 1987 Legal Profession Act 1987
CASES CITED:	Bree v Lupevo Pty Limited & Ors [2003] NSWADT 47 Lupevo Pty Ltd t/a Ampol Nabiac -v- Bree [2002] NSWADTAP 9 Meschino and Secretary, Department of Family and Community Services [2001] AATA 342 Re Schmack and Defence Force Retirement and Death Benefits Authority (1981) 3 ALN N77 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Goldie and Minister for Immigration and Multicultural Affairs [2001] AATA 513 Maric v Comcare (1993) 40 FCR 244 Comcare v A'Hearn (1993) 45 FCR 441 Janiak v Ippolito [1985] 1 SCR 146 Munce v Vinidex [1974] 2 NSWLR 235 (CA) Najdovska & Ors v Australian Iron and Steel Pty Ltd (1986) EOC 92 176 Cardozo v Centreline Service Systems Pty Ltd (1995) EOC 92-759 Tu -v- University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25
REPRESENTATION:	APPELLANTS R Pepper, barrister RESPONDENT D Fryatt, solicitor
ORDERS:	1. The application to extend time for lodging the appeal is refused.; 2. The appeal is dismissed.; 3. The appellants are to pay the respondent’s costs of this appeal as agreed or, if not agreed within 21 days, as assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987.