Tanase v Chief Executive Officer, South Eastern Sydney Area Health Service (EOD)

[2000] NSWADTAP 15

Appeal Panel

CITATION:	Tanase -v- Chief Executive Officer, South Eastern Sydney Area Health Service (EOD) [2000] NSWADTAP 15
PARTIES:	APPLICANT Sylvia Tanase RESPONDENT Chief Executive Officer, South Eastern Sydney Area Health Service
FILE NUMBER:	999016
HEARING DATES:	19/07/2000
SUBMISSIONS CLOSED:	07/19/2000
DATE OF DECISION:	07/19/2000
DECISION UNDER APPEAL:	Principal matter
BEFORE:	Latham M - DCJ (Deputy President); Goode P - Judicial Member; Antonios Z - Member
CATCHWORDS:	leave to appeal out of time
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	107 of 1998
DATE OF DECISION UNDER APPEAL:	06/15/1999
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:
REPRESENTATION:	In person C Ronalds, barrister
ORDERS:	1. The appeal is dismissed; 2. No order as to costs on the appeal.

1 The appellant, Sylvia Tanase, appeals to this Panel against a decision of the Tribunal of 15 June 1999. That decision was in her favour in so far as it found the appellant was subject to victimisation and harassment during the course of her employment. The sum of $12,500 was awarded to the appellant.

2 There is no reference within the Tribunal's decision to the particular heads of damages encompassed by the award but the Panel is satisfied that it was awarded for pain and suffering when account is taken of the settlement of previous workers' compensation proceedings brought by the appellant. The history of the workers' compensation proceedings was before the Tribunal and has been canvassed at length before us.

3 The appellant's complaint for the purposes of this appeal is the amount of the award. The appeal was lodged over three months after the decision was handed down, thus the threshold question on which the Panel heard submissions was the grant of leave to the appellant to prosecute the appeal.

4 After hearing from the appellant and the respondent and considering the documents admitted as exhibits 1 and 2 in these proceedings, the Panel is of the view that this is not an appropriate matter in which to exercise the discretion to grant leave to appeal. That view is founded upon the following:

5 The appellant was unrepresented before the Tribunal below but had consulted a duty solicitor at the Tribunal in the course of the matter. The appellant lodged a statement of claim in the Supreme Court seeking to appeal the Tribunal's decision on 23 June 1999, that is one week after the Tribunal's decision was delivered. Her choice of jurisdiction appears to have been deliberate in the sense that she had in the past sought and did subsequently seek and obtain legal advice and representation in respect of a number of legal proceedings instituted by her in different jurisdictions including the Workers' Compensation Commission, Supreme Court and the District Court.

6 Between 6 September and 15 December 1999 she was represented by Ms Winters of counsel in this Tribunal and in the Supreme Court. Ms Winters drafted a number of documents including a statement of claim in both jurisdictions on the appellant's behalf, however, the appellant terminated Ms Winter's retainer in January of this year.

7 On a number of occasions since commencing the proceedings in the Supreme Court in June of 1999 the appellant has consulted both the Supreme Court and the District Court Registrars to further her claims in those jurisdictions. She appears to have become reasonably conversant with the rules in those jurisdictions.

8 On 2 August 1999 the appellant filed proceedings in the District Court alleging professional negligence in respect of her workers' compensation proceedings. Whilst the appellant is from a non-English speaking background, she has demonstrated a sufficient facility in the English language to allow her to negotiate complex legal forms and procedures.

9 In short, the appellant's activism in litigation in general terms persuades the Panel that there are no extenuating circumstances warranting the grant of leave. In addition we are of the view that even if leave were granted, there is no prospect of success on the merits of the appeal. That is another factor which has weighed in the balance in the exercise of the Panel's discretion.

10 Accordingly the appeal is dismissed. Ms Ronalds we have not forgotten your submission in respect of costs but we decline to make any order in relation to costs on the appeal.