TYTLER v Corbett - [2005] SASC 27

Supreme Court of South Australia
(Civil: Application)
TYTLER v CORBETT
Reasons for Decision of The Honourable Justice Bleby (ex tempore)
21 January 2005
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Appeal to Supreme Court from decision of Equal Opportunity Tribunal - Whether appeal lies to Full Court or single judge - s 98 Equal Opportunity Act 1984, r 96.04 Supreme Court Rules - Question not yet determined - Notice of appeal not filed within time - Power of Court to extend time - s 48 Limitation of Actions Act 1936 - Whether single judge has power to grant extension - Only Full Court has power to hear - Single judge cannot grant extension of time.

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA
WAIVER OF FILING FEES
Appeal to Full Court - Application for waiver of fees on lodging notice of appeal - s 130(2) Supreme Court Act 1935 - Notice of appeal not filed within time - Whether Master should hear application before extension of time obtained - Necessity for waiver of fees application to be determined first - Matters relevant to hearing of application for extension of time - Application for waiver of fees remitted for determination by Master
Equal Opportunity Act 1984 (SA) s 98; District Court Rules (SA) r 96; Supreme Court Rules (SA) r 95, r 97; Constitution Act 1934 (SA) s 86; Workers Compensation Act 1971 (SA) (repealed) s 47; Freedom of Information Act 1991 (SA) s 45; Local Government Act 1934 (SA) (repealed) s 65ZX; Limitation of Actions Act 1936 (SA) s 48; Supreme Court Act 1935 (SA) s 130(2), referred to.
Dagenham Nominees Pty Ltd v Shanks [2003] SASC 139; Wride v Werner [2004] SASC 211, applied.
Sandhurst Trustees Ltd v Gallerie Investments Pty Ltd [2001] SASC 373; Angus Fire Armour v Collector of Customs (1987) 17 FCR 473, considered.

TYTLER v CORBETT
[2005] SASC 27

BLEBY J (ex tempore) This matter comes before me as an application for extension of time within which to institute an appeal against a decision of the Equal Opportunity Tribunal. The appellant is not represented by a legal practitioner. At present, he is an inmate of the Port Lincoln Gaol. He has some obvious difficulties in being able to attend personally to various matters associated with his appeal. So far, his appeal appears to have been attended by a number of procedural deficiencies and difficulties, not all of his own making. However, for reasons which will become apparent, it is not possible for his application for extension of time to be dealt with at this time.
By whom the appeal is to be heard
The Equal Opportunity Tribunal is constituted under Part 2 Division 2 of the Equal Opportunity Act 1984. A right of appeal against a decision or order of the Tribunal is conferred by s 98 of the Equal Opportunity Act. The appeal lies to…

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 TYTLER v Corbett

Details

AGLC: TYTLER v Corbett [2005] SASC 27
Case: [2005] SASC 27
Decision Date: 21 January 2005

CaseChat Overview and Summary

The appeal in the case of TYTLER v Corbett originated from a decision made by the Equal Opportunity Tribunal. The dispute between the parties involved issues under the Equal Opportunity Act 1984, with the appellant, TYTLER, seeking to challenge the tribunal's decision. The primary legal issue before the Supreme Court was whether an appeal from the tribunal's decision should be heard by a single judge or the Full Court, and whether a single judge has the authority to extend the time for filing a notice of appeal.

The court examined sections 98 of the Equal Opportunity Act 1984 and rule 96.04 of the Supreme Court Rules to determine the appropriate forum for the appeal. It also considered section 48 of the Limitation of Actions Act 1936 to assess the power of a single judge to grant an extension of time for filing a notice of appeal. The court held that the question of whether an appeal lies to the Full Court or a single judge had not been previously determined. However, it concluded that the authority to grant an extension of time for filing a notice of appeal rests solely with the Full Court and cannot be exercised by a single judge. Consequently, the appeal was dismissed due to the untimeliness of the notice of appeal.

In summary, the Supreme Court determined that the appeal was not properly before it as the notice of appeal was filed beyond the permissible time. The court clarified that only the Full Court has the power to grant an extension of time for filing a notice of appeal, and thus, a single judge lacks the authority to make such a determination.

Orders