Lupevo Pty Ltd t/a Ampol Nabiac v Bree

[2002] NSWADTAP 9

Appeal Panel

CITATION:	Lupevo Pty Ltd t/a Ampol Nabiac -v- Bree [2002] NSWADTAP 9
PARTIES:	APPELLANT Lupevo Pty Ltd T/a Ampol Nabiac RESPONDENT Roxford Bree
FILE NUMBER:	019043
HEARING DATES:	26/11/2001
SUBMISSIONS CLOSED:	11/26/2001
DATE OF DECISION:	03/26/2002
DECISION UNDER APPEAL:	Dismissal of Application under s 111 Anti Discrimination Act 1977
BEFORE:	Latham M - DCJ (Deputy President); Lees M - Judicial Member; Nemeth de Bikal L - Member
CATCHWORDS:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance - jurisdiction - leave to appeal out of time
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	001051
DATE OF DECISION UNDER APPEAL:	06/13/2001
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Transport Workers Union v Bentley [2001] FCA 671 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 Hunter Valley Developments, Maric v Comcare (1993) 40 FCR 244 Goldie and Minister for Immigration and Multicultural Affairs [2001] AATA 513 Comcare v A’Hearn (1993) 45 FCR 441 Transport Workers Union v Bentley [2001] FCA 671 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others (1964) 112 CLR 125 Schulz v Medical Board of Queensland [2001] AATA 468 Jones v Dunkel (1959) 101 CLR 298
REPRESENTATION:	APPELLANT Lupevo Pty Ltd t/a Ampol Nabiac RESPONDENT Roxford Bree
ORDERS:	1. Leave to lodge the appeal out of time refused; 2. Appeal dismissed.

1 The Appellant appeals against a decision of the Administrative Decisions Tribunal (the Tribunal) of 13 June 2001 dismissing an application by the Appellant for dismissal of the Complainant’s complaint under s 111 of the Anti Discrimination Act 1977 (the AD Act). The bases of the s 111 application were essentially that the Tribunal had no jurisdiction to entertain the application, and that the Appellant company was not the employer of the Complainant. As to the former, the Tribunal held that it did have jurisdiction, and as to the latter, the Tribunal made an order under s 98(2) of the AD Act joining Mr David Clarke and Mrs Tonya Clarke as Respondents.

2 There was no issue taken on the hearing of the appeal with the joinder of Mr and Mrs Clarke. The Appellant’s primary submission was that the Tribunal had erred in law in finding that it did have jurisdiction. In addition, the Appellant alleged other errors of law on the part of the Tribunal as follows :-

· The Appellant was denied natural justice in that the complainant Mr Bree was not present for cross examination on the hearing of the s111 application.

· The Tribunal erred in failing to dismiss the complaint as frivolous or vexatious or misconceived or lacking in substance.

· The Tribunal erred in not considering the decision of Transport Workers Union v Bentley [2001] FCA 671.

3 A preliminary issue arose as to whether the Panel ought to grant leave to the Appellants, who had filed the appeal out of time. It is conceded that the Appellant’s solicitor received the Tribunal’s published reasons on or about 20 June 2001. The appeal was lodged on 3 September 2001, that is, more than six weeks out of time.

Whether Leave Should be Granted to Extend the Time Within Which the Appeal May be Made

4 Section 113(3) of the Administrative Decisions Tribunal Act 1997 (the ADT Act) provides that :-

"An appeal must be made :
(a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under s 89, or

(b) within such further time as the Appeal Panel may allow."

5 The section invokes a broad discretion in the Panel to extend the time for the lodgement of the appeal. In that respect, it is on all fours with s 29(7) of the Administrative Appeals Tribunal Act 1975 (Clth) (the AAT Act), albeit that provision refers to the time within which application may be made to the Commonwealth Administrative Appeals Tribunal (the AAT) for a review of an administrative decision. Section 29(7) of the AAT Act has been the subject of a number of AAT decisions, which are helpful in the present context.

6 In Meschino and Secretary, Department of Family and Community Services [2001] AATA 342 the AAT referred to Re Schmack and Defence Force Retirement and Death Benefits Authority (1981) 3 ALN N77 in reliance upon a number of factors relevant to the exercise of the discretion, which may be re-stated as follows :-

· the reason for the failure to lodge the appeal.

· the length of the delay in lodging the appeal.

· the diligence shown by the Appellant in lodging the appeal after it came to his notice that there were circumstances justifying an appeal.

· the nature of the decision below and the consequences of the decision upon the Appellant’s rights.

· the adequacy of the information conveyed to the Appellant at the time the decision was notified to him, both as to the reasons for the decision and of the Appellant’s entitlement to appeal.

· the extent of the Appellant’s knowledge of the relevant statutory provisions.

· the possible prejudice to the Respondent to the appeal.

7 The AAT also referred to Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 with approval. The principles to be applied in the exercise of the discretion which were summarised by Wilcox J in Hunter Valley Developments were also applied in Goldie and Minister for Immigration and Multicultural Affairs [2001] AATA 513. Those principles relevantly are :-

· Prima facie, proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.

· It is relevant whether the Appellant rested on his rights or took action to make the decision-maker aware that the decision was being contested.

· Any prejudice to the Respondent that would be caused by granting an extension of time is relevant.

· The merits of the appeal are relevant.

· Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.

8 To the last-mentioned principle may be added general considerations of fairness and equity : Hunter Valley Developments, Maric v Comcare (1993) 40 FCR 244 at 249.

9 Further to the provision of an explanation for the delay in lodging the appeal, an acceptable explanation will generally be expected in support of an application for extension of time, and a failure to provide such an explanation is also a relevant factor in the exercise of the discretion to extend the time : Comcare v A’Hearn (1993) 45 FCR 441 at 444.

10 In the instant case, the solicitor for the Appellant sought to explain the delay of six weeks partly by reference to correspondence from the Registry of this Tribunal, in particular, two letters of 22 June 2001 and 25 July 2001 and an email of 23 October 2001, which were admitted on the appeal as Exhibit 6. The first letter in time informed the Appellant’s solicitor of the resignation of the presiding member of the Tribunal which had refused the Appellant’s application under s 111 of the AD Act. The letter went on to seek the Appellant’s consent for the reconstitution of the Tribunal allocated to hear the complaint, pursuant to s 79 of the ADT Act.

11 The withholding of consent under s 79 does not prevent the reconstitution of the Tribunal, rather it affects whether the reconstituted Tribunal has regard to any record of the proceedings before the previously constituted Tribunal, including a record of any evidence taken in the proceedings. Section 79 is directed to the necessity to re-constitute the Tribunal "after the consideration of a matter has commenced" but not concluded. The only proceedings before the Tribunal allocated to the hearing on 11 May 2001 was the application by the Appellant to have the complaint dismissed under s 111 of the AD Act. There had been no hearing, or any part of a hearing, into the substantive merits of the complaint itself. The hearing concluded on 11 May 2001 and the decision was published on 13 June 2001. There was no part-heard matter, nor was there any part of the Tribunal’s consideration of the matter before it outstanding. In these circumstances, it is doubtful whether s 79 of the ADT Act applied at all.

12 In any event, the Appellant’s solicitor did not reply to the Registrar’s letter of 22 June 2001 and the second letter was sent, requesting the Appellant’s solicitor’s attention to the issue of consent. On 15 August 2001 the Appellant’s solicitor telephoned the Registry of the Tribunal, indicating that he was obtaining counsel’s advice on the prospects of seeking a stay of the proceedings in the Tribunal. The apparent basis of the proposed stay was the same jurisdictional point that had been argued and determined by the Tribunal. Moreover, the Appellant’s solicitor undertook to confirm this proposed course in writing. That did not occur, rather the Notice of Appeal was lodged approximately two weeks later. There is nothing in the file to suggest that the question of the reconstitution of the Tribunal was discussed, or that the issue of an appeal (to this or any other jurisdiction) was raised at this time and we are unable to draw any inference from the fact that the Notice of Appeal arrived shortly after this conversation.

13 The reasons cited in the Notice of Appeal justifying an extension of time were, in short form, that the Appellants were considering an appeal against the Tribunal’s decision to the Federal Court. The reasons stated that "because of our dissatisfaction with the order of the Tribunal of 13 June 2001, we do not agree to the Tribunal being re-constituted, but rather, we require a fresh Tribunal to re-hear our objection to jurisdiction. As a consequence, we did not pay further regard to filing this appeal, but rather, were of the view that the Federal Court of Australia would be the proper jurisdiction to proceed. However, we are mindful of the costs and the inconvenience of all parties, including the Tribunal, and wish to file this appeal." These reasons were furnished under the signature of the Appellant’s solicitor and dated 30 August 2001. On 6 September 2001, the Appellant’s solicitor wrote to the Registrar in reply to the letters of 22 June and 25 July, informing her that the Appellants did not consent to the reconstitution of the Tribunal.

14 On 2 October 2001 the Registrar wrote to the parties to advise that the appeal was listed for hearing on 26 November 2001. The Appellant’s solicitor wrote to the Registrar on 12 October seeking clarification of the hearing date. It appears from the terms of that letter that he was under the impression that a fresh hearing of the s 111 application was to be listed, given that his client did not consent to the reconstitution, and he was unsure whether the notice of listing referred to the appeal or the re-hearing. It is unfortunate that he was given the impression that his client’s consent was required for the matter to progress to a full hearing of the complaint, but it must be said that a moment’s reflection would have exposed the error of that assumption. What purpose was to be served by an appeal if the s 111 application was to be heard afresh ? The Registrar confirmed by email on 23 October that it was the appeal which was listed for 26 November.

15 The Panel is not persuaded that there is a satisfactory explanation for the delay in lodging the Notice of Appeal. The Appellant has at all times been represented by the same firm of solicitors and indeed the same individual solicitor. It is a most basic rule of every appellate jurisdiction in this State that appeals must be lodged within the time stipulated by the rules of that jurisdiction. The ADT Act is transparent in this regard. The Appellant’s solicitor did nothing to notify the Registrar of his client’s objection to re-constitution until the Notice of Appeal was lodged. The time for the filing of an appeal expired on 18 July 2001, that is, one week before the Registrar sent the letter of 25 July. The Appellant’s solicitor was notified of the reconstitution shortly after 22 June ; if the question of a fresh hearing was in any way contributing to some confusion as to the appropriate course to follow, he had more than three weeks in which to resolve the matter with the Registrar before the time for lodging the appeal expired. It is therefor difficult to conclude that the issue of re-constitution had any bearing on the delay in lodging the appeal. The fact that the Appellants may have been contemplating an appeal to the Federal Court (leaving to one side the incompetence of an appeal to that Court from a State jurisdiction which itself provides for an avenue of appeal) does not absolve the Appellant from compliance with the requirements of the ADT Act.

16 Whilst it appears that the Appellant was not expressly referred to the appeal provisions of the ADT Act at the time that the reasons for the decision were furnished, it is the view of the Panel that it is reasonable to expect a legal practitioner of some experience to acquaint him or herself with the statute governing the exercise of the jurisdiction in which he or she is appearing. A client’s dissatisfaction with a result would ordinarily lead the practitioner to consider the option of an appeal, and would invariably raise the question of the applicable time limit for the filing of such an appeal. As noted above, such rules are basic to every jurisdiction. In the context of a party who has at all times been legally represented in the Tribunal, it cannot be said that the Appellant was unaware of an entitlement to appeal or of the relevant statutory provisions.

17 Turning to the nature of the decision below and the consequences of that decision on the Appellant’s rights, the decision does no more than allow the complainant’s complaint to proceed to a full hearing. The Appellant’s substantive rights are not affected ; a full defence to the complaint can still be mounted by the Appellant at a hearing before the Tribunal. The Appellant’s failed "pre-emptive strike" in the nature of a s 111 application no doubt has increased the Appellant’s costs to date and further delayed the hearing of the complaint, but the latter would seem to the Panel to be more prejudicial to the Respondent rather than to the Appellant.

18 The Appellant argued that no prejudice would be occasioned to the Respondent by the grant of an extension of time within which to lodge the appeal. That is so, although consideration must be given to the costs incurred in meeting an appeal in a jurisdiction where the parties routinely bear their own costs. The Respondent is entitled to the fruits of the Tribunal’s decision, that is, a full hearing of the complaint without further delay.

19 Finally, the merits of the appeal remain to be assessed.

(1) The Tribunal erred in finding that it had jurisdiction

20 The nub of the Appellant’s argument on this ground was that the complaint, the subject of these proceedings, had been litigated and determined in the Australian Industrial Relations Commission (AIRC). It was common ground that the complainant had filed proceedings in that Commission on 29 October 1996 alleging unlawful termination of employment by his employers, the Appellant company. It was also common ground that the parties had settlement discussions on 18 December 1996 and that certain terms of settlement were negotiated, including a Deed of Release which was to be signed by the parties, and that the Appellant was to pay the complainant $642 on or before 7 January 1997. When the monies were not paid by the due date, the complainant’s solicitors wrote to the Appellant’s solicitors (the present legal representatives), prompting the latter to forward a Deed of Release for the complainant’s execution. On receipt of the Deed, the complainant’s solicitors disputed that it was ever a term of the settlement (as reflected in the draft Deed) that all claims by the complainant against the Appellant, with the exception of a workers compensation claim, would be henceforth barred. The complainant’s solicitors insisted that only claims under the Industrial Relations Act 1988 (Clth) were to be barred. The Deed was never executed and no monies were ever paid.

21 The complainant had also lodged a complaint with the Human Rights and Equal Opportunity Commission on 1 November 1996, alleging discrimination on the part of the Appellant. That complaint was referred to the Anti Discrimination Board on 27 November 1996. On 25 November 1997 the President of the Board wrote to the Appellant, seeking a response. The complaint was ultimately referred to the Tribunal on 20 September 2000. (The delay in referral can in no way be attributed to either party to these proceedings.) The President’s report, which was an exhibit before the Tribunal below, contained the following :-

"Mr Bree contends that the AIRC matter was only meant to deal with his dismissal. He says he did not sign the Deed because it would have prevented his pursuing his allegations of sex discrimination related to the wearing of his earing and his allegations of victimisation during the remainder of his employment. He claims the details of the Deed was (sic) not discussed in the AIRC and it was not until his solicitor received the draft Deed from the respondent’s solicitor that he found there was a clause to that effect."

22 On 7 January 1998, the Appellant’s solicitors wrote to the Registrar of the AIRC, quoting the reference number of the proceedings in that jurisdiction and in the following terms: "On 18 December 1996, a conciliation conference between the parties at Port Macquarie resulted in settlement of this matter. Would you please let us have a certified copy of the Order/Settlement made on that day." No document of that description was ever received by the Appellant, not surprisingly in the circumstances. On 6 December 2000 the Appellant’s solicitors again wrote to the Registrar seeking a transcript of the hearing/order of 18 December 1996 in the AIRC. Similarly, no transcript was made available. Further correspondence followed on 20 March 2001 and 3 May 2001 requesting a Certificate under Division 4 of VIB of the Workplace Relations Act 1996 (Clth), and referring to s 103 of that Act. No certificate was forthcoming.

23 Section 103 of the Workplace Relations Act 1996 (Clth) is headed "Completion of conciliation proceedings" and relevantly provides :-

(1) A conciliation proceeding before a member of the Commission shall be regarded as completed when:
(a) the parties have reached agreement for the settlement of the whole of the industrial dispute and the agreement has been certified under Division 4 of Part VIB;

24 Undoubtedly, the parties did not reach agreement for the settlement of the whole of the industrial dispute and consequently, the agreement was never certified. The Appellant was not in a position to maintain before the Tribunal, and cannot now maintain before the Panel, that any of the complainant’s rights had been determined in another jurisdiction. We can see no error in the way the Tribunal approached the question of jurisdiction. It was not necessary for the Tribunal to reach any conclusion as to the status of the AIRC proceedings ; whether or not the complainant pursued his claim for unlawful termination of his employment in the AIRC was a matter for him. The evidence before the Tribunal and before the Panel established that he had not.

25 One further comment by the Tribunal at paras 20 and 21 of the decision deserves mention. Section 95A of the AD Act allows the Tribunal to grant leave to a party where "an issue that is the subject of proceedings before the Industrial Relations Commission" is sought to be made the subject of proceedings before the Tribunal. Section 95A did not apply because "Industrial Relations Commission" within the terms of that section can only refer to the NSW Commission, according to the presumption against the extra-territoriality of statutes.

26 Related to this ground of appeal was an alleged error by the Tribunal in not having regard to the decision of Transport Workers Union v Bentley [2001] FCA 671 which was handed down on 6 June 2001, that is, after submissions had closed but before the Tribunal’s decision. Leaving to one side the fact that the decision was not brought to the attention of the Tribunal by the Appellant, who sought to rely upon it, the Panel’s consideration of that authority leads it to the view that, had the Tribunal been made aware of it, no different result would have followed. The argument in TWU v Bentley concerned competing lines of authority with respect to the principles governing the doctrine of forum non conveniens. Weinberg J determined that the line of authority which was binding upon him was that represented by the majority in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, following the majority in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197. It is pertinent to set out here the approved statement from the majority in Voth :-

"Firstly, a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise. Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between the parties in the particular case. Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay. Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised ‘with great care’ or extreme caution."

27 The complainant regularly invoked the Tribunal’s jurisdiction. We now turn to a consideration of whether the complaint could be characterised as oppressive, vexatious or an abuse of process.

(2) The Tribunal erred in not dismissing the complaint as frivolous, vexatious, misconceived or lacking in substance.

28 The Appellant’s primary submission was that the complaint was frivolous and vexatious because of some duplicity on the complainant’s part, in that it was alleged he did not disclose to the Anti Discrimination Board the fact that there had been a negotiated settlement of the matter in the course of proceedings in the AIRC. We have already determined that no such settlement existed, although the Appellant continued to assert that there was. In any event, when the complaint was referred to the Tribunal, it is clear from that extract of the President’s report quoted above that the Board was aware of the AIRC proceedings. The complainant made no secret of his dissatisfaction with the proposed settlement and of his decision to pursue his entitlements in this jurisdiction. There has been no duplicitous conduct by the complainant before the Tribunal.

29 The authorities on the characterisation of a complaint as vexatious are well established. Beginning with Barwick J’s observations in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others (1964) 112 CLR 125 that the jurisdiction to terminate an action summarily on this basis should be exercised sparingly, the then Chief Justice went on to say at 128-9 : -

" ... these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed: ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘so manifest that to allow them (the pleadings) to stand would involve useless expense’.

30 At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or ‘so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument’; ‘so to speak apparent at a glance’ . "

31 See also the authorities summarised in Schulz v Medical Board of Queensland [2001] AATA 468.

32 It is crucial to the approach which a tribunal takes to applications for summary dismissal on the grounds that the proceedings are vexatious that a clear distinction is observed between a decision on the merits of a matter on the one hand and a decision as to whether there is anything in fact or in law that is fairly triable or arguable on the other. The former plays no part in a tribunal’s discretion to exercise the power to summarily dismiss on this basis.

33 "Frivolous" and "vexatious" are often used interchangeably, such as in Black's Law Dictionary, Special Deluxe Fifth Edition, at page 1403. At p 601 it defines "frivolous" as :-

"Of little weight or importance. A pleading is ‘frivolous’ when it is clearly insufficient on its face, and does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the opponent."

34 In the view of the Panel, the complaint does not meet any of the criteria set out above. The triable issues are whether the Appellant discriminated against the complainant on the ground of his gender and whether he was subject to victimisation by the Appellant on the same ground, arising out of the Appellant’s refusal to allow the complainant to wear an earing in the course of his employment. Whatever the merits of the complaint, it cannot be said that it discloses no cause of action. There was no argument addressed to the Tribunal below or to this Panel that the complaint was misconceived or lacking in substance. As we have already noted, the Appellant’s submissions were directed almost entirely to the issue of jurisdiction. The Panel is not prepared to find any error on the part of the Tribunal in failing to deal directly with this aspect of s 111.

(3) The Tribunal erred in proceeding with the application in the absence of the complainant and in failing to draw any inference from that absence.

35 The hearing of the Appellant’s s 111 application proceeded in the absence of the complainant, albeit the complainant’s legal representative was available to make oral submissions, in addition to the written submissions he had already filed, to the Tribunal by telephone. Both the Appellant and the complainant and their respective legal representatives reside in the Taree/Forster area.

36 The Appellant submitted to the Tribunal and to the Panel that the application was necessarily prejudiced by the absence of the complainant, in that he was not available for cross examination. In answer to a question from the Panel seeking clarification of the nature of the prejudice alleged, we were told that it was proposed to cross examine the Appellant on the correspondence from his solicitors, the precise terms of the alleged settlement, what action he had taken to enforce the terms of the settlement and what actions he may have instituted in other jurisdictions, contemporaneously with the proceedings in the AIRC.

37 Firstly, there was no requirement upon the complainant to be present at the Appellant’s application. Section 101(1)(b) of the AD Act allows a party to be represented by a solicitor. Section 111 applications routinely proceed on the basis of the President’s report and such other documentary evidence as the parties may tender. The complainant’s case is taken at its highest for these purposes.

38 Secondly, it was the Appellant’s application and the onus of proving the matters relied upon to ground that application lay upon the Appellant. If the complainant was required as a witness by the Appellant for that purpose, it was incumbent upon the Appellant to issue a summons for his attendance at the hearing. The Appellant did not do so.

39 Thirdly, since the Appellant’s primary, if not the only, basis for the application was a want of jurisdiction in the Tribunal, nothing that the complainant could say was capable of affecting that issue. Jurisdiction either exists or it doesn’t. The existence of jurisdiction is entirely distinct from the question of the appropriate jurisdiction ; a tribunal must be seized of jurisdiction before it can determine whether it is the appropriate forum. We also make the observation in passing that much of the proposed cross examination could legitimately be subject to a claim of client legal privilege.

40 There was no prejudice to the Appellant in proceeding with the hearing of the s 111 application in the absence of the complainant. In so far as the Tribunal drew no adverse inference from the complainant’s absence (para 14 of the decision), it was entirely consistent with general legal principles. It has long been settled that limited inferences are available from the absence of a witness, provided that the witness is a person who, in the ordinary course of events, the tribunal would have expected to have been called : Jones v Dunkel (1959) 101 CLR 298. A complainant is not a witness who, in the ordinary course of a s 111 application by a respondent to a complaint, this Tribunal would expect to be called. There would be no such expectation because the complainant’s case, at its highest, is before the Tribunal for the purposes of the application.

41 This necessarily succinct analysis of the grounds of the appeal demonstrate that there was no merit in the appeal. Having regard to the lack of merit, together with the factors referred to above, the Panel is not disposed to grant leave to the Appellant to have the appeal lodged out of time.

42 Accordingly, the orders of the Panel are :-

1. Leave to lodge the appeal out of time is refused.

2. Appeal dismissed.