Nicholls & Nicholls v State of New South Wales (Department of Education and Training)

[2008] NSWADTAP 63

Appeal Panel - Internal

CITATION:	Nicholls & Nicholls v State of New South Wales (Department of Education and Training) [2008] NSWADTAP 63
PARTIES:	APPLICANT David Nicholls and Donna Nicholls RESPONDENT State of New South Wales (Department of Education and Training)
FILE NUMBER:	089049
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	28 August 2008
DATE OF DECISION:	26 September 2008
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Application for Appeal filed out of time
DECISION UNDER APPEAL:	Nicholls v State of New South Wales (Department of Education and Training) [2008] NSWADT 142
FILE NUMBER UNDER APPEAL:	051038, 051039
DATE OF DECISION UNDER APPEAL:	05/16/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
REPRESENTATION:	APPLICANT In person RESPONDENT I V Knight, Crown Solicitor
ORDERS:	Time for the filing of a Notice of Appeal is extended to 7 July 2008.

Background

1 On 7 July 2008 the appellants, David and Donna Nicholls, filed an internal appeal against a decision of the Tribunal. The appeal was filed out of time, that is more than 28 days from the date that the decision was furnished to the parties. Mr and Ms Nicholls applied to the Appeal Panel for further time for the appeal to be lodged. I made directions for the parties to file and serve submissions in relation to the question of whether the appeal should be accepted out of time and advised that a decision would be made ‘on the papers’ without having an oral hearing.

2 On 16 May 2008, the Tribunal handed down a decision in relation to Mr and Ms Nicholls’ complaints of race discrimination and victimisation in employment. The Tribunal dismissed each of the complaints. In the Tribunal proceedings the appellants were represented by a barrister, Mr Wallach. Mr John Peisley of Lee, Peisley and Foley was the appellants’ solicitor. The Tribunal’s file records that Mr Peisley collected the Tribunal’s decision at 4.43 pm on 16 May 2008. That is the date on which the Tribunal’s decision was furnished to the appellants: Administrative Decisions Tribunal Act 1997, section 113(3).

3 On 12 June 2008 the appellants faxed a Notice of Appeal to the Registry without the required fee. As they had not provided the fee or requested a fee waiver, the Notice of Appeal was not registered or served on the Respondent. On 19 June 2008 the appellants purported to file the Notice of Appeal. The Notice contained a notation saying, “Can I please pay fee next Thursday 26/6/08?” The Registry told the appellants that they should forward a filing fee as soon as possible. The fee was eventually paid on 7 July 2008 and the Notice of Appeal was registered as having been filed on that date. As the decision was furnished to the appellants on 16 May, the Appeal was filed approximately 3 weeks late.

Reasons for late appeal

4 The appellants gave three reasons for requesting that the Appeal be accepted even though it had been filed out of time. The first was that they had attempted to appeal but did not have the funds to pay for the filing fee until 7 July. The second was that neither their solicitor nor their barrister would draft a Notice of Appeal on their behalf until their fees for the Tribunal proceedings had been paid. The appellants said that they were in the process of finding another barrister to assist them “pro bono”. Finally the appellants said that they had been unable to obtain a copy of the transcript of the Tribunal proceedings from their previous solicitor and it was not until the last week in July 2008 that the Tribunal had provided them with another copy.

Respondent’s submissions

5 The respondent submitted that the only possible barrier to the appellants filing the Notice of Appeal on time was the difficulty they have had finding a pro bono barrister. However, the respondent submitted that this is not a sufficient reason for granting an extension of time. Furthermore, as the appellants have not identified a question of law nor any basis on which the appeal should be extended to the merits of the Tribunal’s decision, the application for an extension of time should be refused.

Conclusion

6 The appellants attempted to file a Notice of Appeal by fax prior to the expiry of the 28-day period. They endeavoured to file the Notice again but could not afford the $230 filing fee at that time. The fee has now been paid and the Notice of Appeal filed. However, it does not contain any grounds of appeal. Given that the appeal is only 3 weeks late and that the appellants have been trying to find someone to represent them pro bono, I extend the time for the lodgement of the Notice of Appeal to 7 July 2008.

7 However, given the history of this matter, the appeal must now be prepared and heard as soon as practicable. To that end, I make the following directions:

1. Amended Notice of Appeal containing the grounds of appeal together with written submissions supporting those grounds is to be filed and served within 28 days of the date of these reasons.

2. A Notice of Reply together with any written submissions in support is to be filed and served within 28 days of receiving the Amended Notice.

3. Registry to list the appeal for hearing after that time on a date suitable to the parties and the Tribunal.