Tytler v Corbett & GSL Custodial Services (No 2) - [2006] SASC 100

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules)
TYTLER v CORBETT & GSL CUSTODIAL SERVICES (NO 2)
Judgment of The Honourable Justice White
11 April 2006
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT
Applications to strike out outline of submissions of second respondent, for a "disjoinder" of proceedings in order to have matters heard and determined separately, multiple applications for discovery, and an application for an extension of time to institute an appeal against a decision of the Equal Opportunity Tribunal ("EOT") - where Supreme Court has a discretionary power to extend the time within which an appeal from the EOT may be instituted - consideration of matters relevant to the exercise of the discretion to extend time - discussion of relevant events that occasioned the delay in instituting the appeal.
Held: application to strike out outline of submissions inappropriate - application for "disjoinder" unwarranted - rules pertaining to discovery in proceedings at first instance and prior to commencement of proceedings have no direct application to appeal proceedings - no basis shown to require discovery where complaint on appeal involves questions of law - applicant not responsible for much of the lapse of time before an institution of appeal - appropriate to grant extension - applications to strike out outline of submissions, for "disjoinder" and for discovery dismissed - application for an extension of time is granted.
Equal Opportunity Act 1984 (SA), s 86, s 87, s 96, s 98; Supreme Court Rules 1987 r 28.05, r 58, r 60, r 95.01, r 95.11, r 96.04, r 102.09, referred to.
Tytler v Corbett [2005] SASC 27; Lovett v Le Gall (1975) 10 SASR 479; Smith v St John Ambulance - SA Inc (Unreported, Supreme Court of South Australia, Matheson J, 10 December 1991); Smith v St John Ambulance Australia - SA Inc (1992) 166 LSJS 231; Sutton v State of South Australia [1998] SASC 6630, considered.

TYTLER v CORBETT & GSL CUSTODIAL SERVICES (NO 2)
[2006] SASC 100

WHITE J: The appellant is seeking to appeal against a decision of the Equal Opportunity Tribunal (“the Tribunal”) delivered on 10 November 2004 dismissing his claims of sexual harassment and victimisation by the first and second respondents respectively.
The appellant seeks an extension of time in which to institute the appeal. It should have been instituted no later than 10 December 2004, but in circumstances which I will detail below, it was not instituted until 6 December 2005. As well as an extension of time, the appellant seeks a number of other orders. This decision concerns various of his applications.
In this Court, as in the Tribunal, the appellant has been unrepresented. In addition, at all relevant times, the appellant has been in custody in the Port Lincoln gaol.
The proceedings in this Court have had a tortuous history. Some of that has resulted from actions taken by the appellant. Some of it has resulted from actions for which the appellant is not responsible and over which he had no control. It is going to be necessary for some of that tortuous history to be recounted in this judgment in order that the applications made by the appellant, and the lapse of time, may be understood. Appropriate allowance has to be made for the difficulties experienced by the appellant as an unrepresented and incarcerated litigant in attending, in a timely way, to all matters associated with the institution and prosecution of the appeal. At the same time, it is to be remembered that the appellant has evidently had an education which many unrepresented litigants have lacked. The appellant describes himself as having the Degree of Bachelor of Education, and Bachelor of Social Work and, in addition, as holding a Diploma of Teaching.
Background Circumstances
The sexual harassment alleged by the appellant was said to have occurred in the period between October 2002 and July 2003 when the appellant was in custody in Mount Gambier gaol. During that time, the first respondent was employed as a catering manager at the gaol by the second respondent (“GSL”). GSL managed the gaol pursuant to a contract with the South Australian government. The appellant worked in the gaol kitchen and had come into contact with the first respondent.
As to the complaint of sexual harassment by the first respondent, it is sufficient, for the purposes of this decision, to say that the appellant alleges that the first respondent had, whilst carrying out her duties as catering manager in the Mount Gambier gaol over a period of approximately nine months, made lewd comments and engaged in sexually provocative behaviour towards him, all of which was unwanted, resented and resisted by him. The appellant alleged a contravention by the first respondent of ss 87(2), 87(6)(b), and 87(8) of the Equal Opportunity Act 1984 (“EOA”). The first respondent denied each of the appellant’s allegations and alleged that she had been harassed and threatened by the appellant whilst carrying out her daily duties, and that the harassment and threats had caused stress and anxiety which resulted in her resigning her employment with GSL.
The appellant alleged that GSL (as the employer of the first respondent) was vicariously liable for her conduct or, in the alternative that it had, by her conduct, subjected him, as its employee, to sexual harassment in contravention of s 87(1) of the EOA. In addition, the appellant alleged that GSL had engaged in acts of victimisation, contravening s 86 of the EOA. The victimisation was said to have consisted of GSL treating him unfavourably on account of his assertion of a right to complain about the alleged sexual harassment by the first respondent; in GSL having failed itself to investigate his complaint about the conduct of the first respondent; in his having been refused permission to make a telephone call to the Commissioner of Equal Opportunity so as to lodge a harassment complaint; and because correspondence written by him had been taken by the Department for Correctional Services officers at Yatala Labour Prison and not returned to him.
The second respondent denied wholly the allegations of the appellant. By its answer filed in the Tribunal, it alleged that in about September 2003 it had received a complaint from the first respondent that the appellant was “stalking” her and that on 2 October 2003, it had received other evidence indicating that the appellant had developed an “unhealthy interest” in the first respondent. It was decided then that the appellant should be transferred to the Port Lincoln prison. After being told that decision, the appellant made allegations that he had been the victim of sexual harassment, verbal abuse, threats and intimidation at the hands of the first respondent.
The Decision of the Tribunal
By s 96(2) of the EOA, the Tribunal is empowered to make, at any stage of the proceedings before it, an order dismissing the proceedings. On 13 July 2004, GSL applied for an order dismissing the whole of the appellant’s proceedings before the Tribunal on the grounds that they were “frivolous, vexatious, misconceived and lacking in substance”.
The Tribunal upheld that application, holding that the appellant’s complaints were trivial and lacking in substance. Although it considered that there is some doubt as to whether prisoners are entitled to the benefit of the provisions in the EOA, it did not decide that question. The Tribunal held that none of the appellant’s complaints against the first respondent alleged conduct to which s 87 of the EOA referred. In relation to the complaints against GSL, the Tribunal held that none alleged conduct to which s 86 of the EOA referred and, even if that conclusion was wrong, that the complaints were trivial and lacking in substance. Hence the appellant’s complaint was dismissed in its entirety.
It is from that decision that the appellant wishes to appeal.
Initial Steps in the Institution of the Appeal
By s 98(1)(b) of the EOA, the appellant had a right of appeal to this Court from the decision of the Tribunal. Section 98(2) provides that such an appeal “must be instituted within one month” of the making of the decision or order appealed against.
The Tribunal decision was delivered on 10 November 2004. The Tribunal subsequently dealt with the issues of costs and delivered its decision on those issues on 10 December 2004.
There are no rules of this Court which provide specifically for appeals from the Tribunal. But as the Tribunal was presided over by a judge of the District Court, SCR 96.04 is applicable. That rule provides:
Where any Act:
(a) vests jurisdiction in a Tribunal over which a Judge of the District Court presides; and
(b) provides a right of appeal from a decision of that Tribunal to the Supreme Court; and
(c) does not specify whether the right of appeal is to the Full Court or to a single Judge,
the appeal shall be to the Full Court unless a Judge, on an application made within seven days of the filing and service of the notice of appeal by any party to the appeal, decides that the subject matter of the appeal is of such a nature as not to warrant the attention of the Full Court in which case the appeal shall be heard and determined by a single Judge.
Hence, the appeal from the Tribunal had to be instituted as an appeal to the Full Court. If an application was made within seven days of the filing and service of the Notice of Appeal, an order could be made that the appeal be heard by a single judge. The manner of institution of an appeal to the Full Court is provided for in SCR 95.01 which provides (relevantly):
(1) All appeals to the Full Court as of right or after leave has been granted shall be instituted by filing and serving a notice of appeal which shall set out:
(a)     a brief statement of the decision appealed from;
(b)     the grounds of appeal in sufficient detail to enable the Full Court to know what points are being relied on in support of each ground;
(c)     whether all or part only, and if so which part, of the decision is complained of;
(d)     the order sought by the appellant;
(e)     in the case of an appeal brought by leave, state that fact, and unless the Court otherwise directs, an appellant may not rely upon any grounds which are not set out in the notice of appeal. A notice of appeal shall be in Form 38A except where these rules otherwise provide.
(2)     A notice of appeal forthwith shall:
(a)     be served on all parties directly affected by the appeal;
(b)     where the Court or Tribunal appealed from is other than the Supreme Court, be served a proper officer of that Court or Tribunal.
…
The effect of SCR 95.01 and s 98(2) is that in order to institute his appeal, the appellant had, within one month from 10 November 2004, to file a Notice of Appeal in this Court and serve that notice on all parties directly affected by the appeal and on the Registrar of the Tribunal. The appellant did not comply with these requirements.
Some of the early attempts by the appellant to institute his appeal were outlined in the judgment of Bleby J in Tytler v Corbett.[1] By that decision, Bleby J held that the effect of SCR 96.04 was to preclude him, sitting as a single judge, from hearing and determining the application by the appellant for the extension of time for the institution of the appeal. As to that history, Bleby J said:
[1] [2005] SASC 27.
The appellant purported to institute the appeal by enclosing a notice of appeal with a letter to the Registrar of the District Court who also administers the Equal Opportunity Tribunal. The letter concerned another matter and asked that the notice of appeal be forwarded to the Supreme Court Registrar. That occurred, and a copy of the letter and, I infer, the notice of appeal, was received by the Supreme Court Registrar on 13 December 2004. In response, the appellant was advised that his right of appeal lay to the Full Court and not to a single judge of the Court as specified in his notice of appeal. He was told that he would need to amend the notice and return it to the Court. Given the provisions of r 96.04, that advice was misleading.
The letter also advised the appellant that he should file a separate notice for specific directions and supporting affidavit in support of his application for an extension of time “as this could be heard by a single judge prior to you preparing appeal books and completing other appeals procedures”. That was also misleading advice, notwithstanding the desirability of a single judge being able to grant an extension of time.
He was also informed of the filing fee needed to lodge the notice of appeal and was informed that the notice would not be filed until the fee is paid or waived by the Court. The notice of appeal was returned to him together with information about how to apply for a waiver of fees.
The notice of appeal was duly returned to the registry with the amendments suggested in the letter together with an application for waiver of fees.
…
When the notice of appeal was returned to the registry with an application for remission of fees, the application was referred to a Master who endorsed the request from the registry:
“Any waiver of fees is dependent on an extension of time to appeal being obtained. The application for waiver should be resubmitted after any extension has been obtained …”.
The application for waiver of fees has therefore not been dealt with and the notice of appeal has not been filed. The consequence is that the appeal has not been instituted. The notice of appeal contains, quite properly, an application for extension of time and specifies the grounds on which the application is made. Without the filing of the notice of appeal there can be no institution of the appeal, the date of which may well be relevant to determining whether an extension of time should be granted. Without the filing of the notice of appeal no notice can be taken of the grounds of appeal, which will also be relevant to an extension of time.
In summary, the first time a Notice of Appeal was received by this Court was on 13 December 2004, when the copy sent by the appellant to the Registrar of the Tribunal was forwarded on to this Court. That Notice of Appeal was not “filed” by the registry staff at that time. Instead, the notice was returned to the appellant under cover of a letter which informed him, amongst other things, that the notice would not be filed until the filing fee was paid or alternatively waived by the court. The appellant was provided with materials relevant to the making of an application for a waiver of fees.
The Notice of Appeal was returned to this Court on 23 December 2004, together with an application for a waiver of fees, and for an extension of time and discovery of documents. Because of the circumstances described by Bleby J, the application for waiver of fees was not determined until 11 February 2005 (when the fees were waived). The Notice of Appeal was then filed in this Court on the same day, but the appeal was still not instituted as required by SCR 95.01. It had yet to be served.
An Application for Substituted Service – Initial Steps
In its original form, the Notice of Appeal named one respondent only, namely, the first respondent, and complained only of that part of the decision by which the complaint of sexual harassment by the first respondent was dismissed.
The appellant had a difficulty in that he did not have an address for the first respondent at which he could effect service. The first respondent was fearful of harassment from the appellant and kept her address secret from him. The first respondent’s address has not been disclosed to the appellant either by the Tribunal or by this Court.
The appellant seems, initially, to have been under the misapprehension that this Court would effect service of the Notice of Appeal. It also seems that he was unaware that his Notice of Appeal had in fact been “filed” in this Court on 11 February 2005 for some time. But by a Notice for Specific Directions dated 14 March 2005, and received in this Court on 21 March 2005, the appellant sought, pursuant to SCR 14, an order for substituted service on the first respondent. The appellant sought to effect service on her by way of newspaper advertisement. The Notice for Specific Directions was accompanied by a letter and not by an affidavit. It seems that for this reason, the Notice was not filed by the registry, and was not referred to a judge or master for determination. By letter dated 17 May 2005 the appellant was told that his “documentation” was in the “incorrect form”. He was provided with pro forma documents to be used so that he might correct the position.
On 7 July 2005, the Court received another Notice for Specific Directions (dated 21 June 2005 – FDN 21) and supporting affidavit seeking an order for substituted service with respect to the first respondent and an order for discovery against GSL (still not a party to the proceedings) and against the Commissioner for Equal Opportunity (who had not been a party to the proceedings in the Tribunal and was not a respondent to the appeal). It seems that the presence in the Notice for Specific Directions of the application for substituted service may have been overlooked by the registry staff, and the application treated as an application for discovery only. The applicant has deposed to being told by a member of the registry staff, in a telephone conversation on 12 July 2005, that no application for leave to effect substituted service had been received. Given the inappropriate positioning of the application for substituted service in the Notice, such an oversight is readily explicable.
Further, it was considered by the registry staff and by a master of this Court that because the Notice for Specific Directions dated 21 June 2005 contained an application for discovery in connection with an appeal and against two persons who were not, at that time, parties to the appeal, leave in accordance with SCR 102.09 was required for the notice to be issued. The notice was not therefore filed nor referred to a judge or master for determination in the usual way. By letter dated 18 July 2005, the appellant was informed that he would have to apply for leave to issue the Notice for Specific Directions dated 21 June 2005, and provide an affidavit in support of that application. He was also told that he would need to file an affidavit proving service of the Notice of Appeal, the application and affidavit seeking discovery, and the application seeking leave to issue the application for discovery itself on GSL. No mention was made in the letter of 18 July 2005 to the application for substituted service or in relation to service on the first respondent at all.
On 15 August 2005, this Court received from the appellant a Notice for Specific Directions dated 24 July 2005 [FDN 10] seeking leave to issue his application for discovery together with a supporting affidavit.
In some way which is not clear to me, the application of the appellant [FDN 10] for leave to file the notice dated 21 June 2005 somehow came to be understood as reviving his application for an extension of time for the institution of the appeal. This may have happened because of simultaneous attempts which the appellant was making to set his appeal down for hearing. Those attempts were quite misconceived because the appeal had not yet been instituted (the first respondent being the only named respondent at that stage not having been served). In relation to his attempts to set the appeal down, the appellant had filed, on 31 August 2005, a Notice for Specific Directions [FDN 12] seeking an extension of time, pursuant to s 48 of the Limitation of Actions Act 1936 (“LAA”) in which to submit appeal books. That application too was misconceived. However, that application was probably referable to advice which the appellant had been given by letter from the registry dated 10 August 2005, that his appeal would “expire on 11 August 2005 so you may need to seek an extension of time to file your appeal book”. That advice was incorrect. As the appeal had not yet been instituted, the time fixed by SCR 95.11 in which it had to be set down for hearing had not yet commenced to run. The application for discovery and substituted service and the application with respect to the setting down of the appeal for hearing were being dealt with by different members of the registry staff. This may have led to some confusion both by the appellant and the registry staff as to what was required. Whatever the reason, the applications of the appellant, including the application for leave to service the application dated 21 June 2005, which he had been told by the registry staff that he should make, were not determined by a judge or a master in a hearing.

By letter from the registry to the appellant dated 7 October 2005, the appellant was told that his application for an extension of time in which to institute the appeal had to be determined by the Full Court; that the Notice of Appeal had to be filed and served in order for the appeal to be instituted in accordance with the rules; that given the suppression of the first respondent’s address, he could apply for an order for substituted service; and that once the first respondent had been served, attention should be given to the preparation of the appeal book and the setting down of the appeal for hearing. The fact that the appellant had already filed an application seeking an order for substituted service seems to have been quite overlooked. By letter dated 13 October 2005, the registry staff informed the appellant that he would need to make a separate application for substituted service. The reference to a separate application is explicable as the registry staff were seemingly unaware of the earlier application to that effect contained in the Notice for Specific Directions dated 21 June 2005.
By Notice for Specific Directions dated 18 October 2005 and filed in this Court on 2 November 2005 [FDN 18], the applicant made a further application for an order for substituted service with respect to the first respondent.
The Hearing on 11 November 2005
The application filed on 2 November 2005 [FDN 18] came before me in the Chamber List on 11 November 2005. In addition, the application by the appellant filed on 15 August 2005 [FDN 9] as well as an application filed on 26 September 2005 [FDN 14] by which the appellant sought to amend his application for discovery were raised for consideration.
Against the opposition of the appellant, I granted leave to Mr Manuel, appearing for GSL, to intervene and to be heard. Mr Manuel agreed to obtain instructions as to whether his firm would permit the first respondent to use its address as an address for service in relation to the appeal. If so, the appellant could effect service of the Notice of Appeal at that address obviating the need for an order for substituted service. The hearing of the respective applications was adjourned to 18 November 2005.
The Hearing on 18 November 2005
At the hearing on 18 November 2005 GSL applied to be joined as a respondent to the appeal. Against the opposition of the appellant, I granted that application. I did so because it seemed to me that SCR 95.03 required that it should have been made a party to the appeal from the outset.[2]
[2] SCR 95.03(1) provides:
(1) Each party to the proceedings in the Court or tribunal below who is affected by the relief sought by a notice of appeal or is interested in maintaining the decision under appeal, shall be joined as a party appellant or respondent to an appeal.
GSL was, at least, a party to the proceedings below “interested in maintaining the decision under appeal”. It had an interest in avoiding a finding that its employee had, in the course of her employment, engaged in conduct constituting sexual harassment. That was especially so in the circumstance where it had been asserted that it was vicariously liable for that employee’s conduct.
Mr Manuel also indicated that his firm was willing for its address to be used as an address for service by the first respondent and, further, that the first respondent was willing to accept service at that address. That made further consideration of the application for substituted service unnecessary. I indicated to the appellant that he should effect service of the Notice of Appeal on the first respondent at that address as soon as possible so that he would complete the steps necessary for the institution of his appeal. I then adjourned the hearing of the various applications for discovery to 2 December 2005.
The Hearing on 2 December 2005
As at 2 December 2005, the appellant had still not served the first and second respondents at the nominated address for service. He said that he had not done so because of his understanding of SCR 28.05. That was a misconception on his part as SCR 28.05 has not application at all to the service of a Notice of Appeal, let alone a Notice of Appeal on a person who is a respondent to the appeal.
The appellant’s failure to serve the first respondent led to a further adjournment, namely, to 16 December 2005. I indicated that if the appeal was instituted by that time, and if there was an application pursuant to SCR 96.04 for the appeal to be heard and determined by a single judge, I would deal with that application at that time. If the application was acceded to I indicated that I would proceed to hear and determine the applications by the appellant for discovery orders and for the extension of time in which to institute the appeal.
The Hearing on 16 December 2005
At this hearing, I was informed that the first respondent had been served with the Notice of Appeal on either 6 or 7 December 2005. The actual date (of those two dates) is immaterial. That means that the appeal to this Court was instituted on either 6 or 7 December 2005. Accordingly, the appellant seeks an extension of time of just on one year in which to institute his appeal.
The applications heard on 16 December 2005 were:
1.The application of the appellant filed on 12 December 2005 [FDN 27] that the appeal be heard by a single judge.
2.An application by the appellant filed on 12 December 2005 [FDN 25] to amend the grounds in the Notice of Appeal. The effect of the proposed amendments was to raise a challenge to the dismissal by the Tribunal of the complaint of victimization by GSL.
3.Applications filed by the appellant on the 15 August 2005 [FDN 9], 26 September 2005 [FDN 14] and 11 November 2005 [FDN 20] for orders for discovery of documents. The applications were treated as the one application.
4.The application for an extension of time in which to institute the appeal.
Each of the appellant, the first respondent and GSL provided outlines of submissions in relation to the applications for discovery and for an extension of time. Apart from providing correspondence indicating that she opposed the applications of the appellant, that she considered that the Tribunal decision should be upheld for the reasons given by it and that she did not wish to be heard orally, the first respondent took no part in the hearing on 16 December 2005.
The Rule 96.04 Application
On the written application of the appellant, and with the consent of the second respondent, I directed that this appeal be heard and determined by a single judge. I was satisfied that the subject matter of the appeal was not such as to warrant the attention of the Full Court.
The Application to Amend the Notice of Appeal
GSL did not oppose the application to amend the Notice of Appeal. I granted that application. The appellant has filed a document (FDN 34) which purports to be the amended notice of appeal, but it does not conform with the leave granted, nor with the rules relating to amendment. It incorporates only the additional grounds of appeal and none of the original grounds.
Strike Out of GSL’s Submissions
By an application filed 12 December 2005 [FDN 27] the appellant sought to have struck out the outlines of submissions of GSL concerning the appellant’s applications for discovery and an extension of time, filed on 8 December 2005 [FDN 23 and 24]. The appellant considered that those documents had the status of a defence. That is a misapprehension because their status is no more than an outline, or a foreshadowing, of the submissions which the second respondent intended to make at the hearing. The striking out of those documents is inappropriate. I dismiss this application.
Disjoinder
By application filed 12 December 2005 [FDN 27] the appellant applied for what he called “disjoinder” of the respective appeals against the first respondent and the second respondent. The appellant explained that by that he sought a separate hearing and determination of the appeals concerning the first and second respondents. It was submitted that “disjoinder” was appropriate because while the appeal against the first respondent involved questions of law, the appeal against GSL involved questions of fact, or at least questions of combined fact and law. It also seemed that the appellant was concerned that if the appeals were heard together, submissions by way of response to the appeal against the dismissal of the complaint against the first respondent would be made by GSL which submissions would not be heard by the Court if the appeals were heard separately. I do not consider that either of those matters warrants a separate hearing and determination of the respective parts of the appeal. That application is refused.
The Application for the Extension of Time
Because the time within which an appeal from the Tribunal is to be instituted is fixed by the EOA rather than the rules of this Court, it is s 48(1) of the LAA which provides the power to this Court to extend that time. As the conduct of which the appellant complained to the Tribunal occurred before the commencement of the Law Reform (IPP Recommendations) Act 2004, it is s 48 in its unamended form which is to be applied.[3] That means that this Court has a discretion to extend the one month period fixed by s 98(2) of the EOA “as the justice of the case may require”.
[3] Law Reform (IPP Recommendations) Act 2004 Sch 1.
Although by reason of the course adopted by the appellant, there is now an appeal against the Tribunal decision dismissing the complaint of sexual harassment, and a separate appeal against the Tribunal decision dismissing the complaint of victimisation, I propose to treat them as the one appeal. Doing so is favourable to the appellant as, in my opinion, he bears a greater degree of responsibility for the delays which have occurred in relation to the institution of the appeal against the decision dismissing the complaint of victimisation.
A number of matters have been identified in the cases as being relevant to the exercise of the discretion to extend time: the length of the extension sought, the explanation for the lapse of time, the hardship to the appellant if the extension is not allowed, the prejudice to the respondents if it is allowed, and the conduct of the parties in relation to the appeal.[4]
[4] Lovett v Le Gall (1975) 10 SASR 479 at 494.
Here, as already noted, an extension for a very long period, just on 12 months, is required. However, while I consider that the appellant may have been substantially responsible for the failure to institute the appeal by 13 December 2004, I consider that it would not be appropriate to regard him as being responsible for very much of the delay which has occurred since that time. I have outlined above the course of events since the Notice of Appeal was received in this Court on 23 December 2004. It is apparent that delays have resulted from misconceptions by the appellant, the implementation of administrative procedures of this Court, suggestions or directions to the appellant as to the way in which he should proceed, misunderstandings as to the nature of the appellant’s applications, and the difficulties occasioned by the fact that he did not have an address for the first respondent. Accordingly, although the length of the extension sought is substantial, there is ready explanation for the delay and the respondent should not be held personally responsible for much of that delay.
In a sense, the prejudice to the appellant if an extension of time is not granted is obvious. He will not be able to pursue his appeals. The appellant asserted that this was a significant prejudice. He is presently serving a life sentence in custody for an offence committed in 1979, and a second sentence for offences committed between 1996 and 1999. He will not become eligible for parole until June 2008. He is concerned that the behaviour alleged against him by the first respondent may be used to his detriment in any decision concerning his release on parole. He sees the prosecution of his complaint of sexual harassment as necessary, in effect, to clear his name. For present purposes, it is not necessary for me to express a view as to whether those complaints are justified.
The appellant did not make a like submission in relation to his complaint of victimisation by GSL. It is difficult to see how the subject matter of those complaints could, by themselves, impinge upon the appellant’s prospects of obtaining parole. It is difficult, for example, to conceive that a denial of permission to make a telephone call, or a complaint about that denial, could reasonably have that effect .
As to the conduct of the parties in relation to the appeal, I do not consider that there is anything which I should regard as operating adversely to any party. I add that I accept that the appellant has acted reasonably diligently in his attempts to prosecute the appeal – even though some of the steps which he has taken have been misconceived.
I return to what I regard as the fundamental matter and that is the prejudice to the appellant if the extension is not granted. The appellant would not suffer any prejudice if his appeal must inevitably fail, or has no reasonable prospects of success. In the circumstances of this case, I am not willing to conclude that none of the grounds of appeal have any prospect of success. As I will be the member of the Court hearing the appeal if the extension is granted, it is undesirable for me to say anything more than that about the appellant’s prospects of success.
Accordingly, I will grant the appellant an extension of time to 7 December 2005 in which to institute his appeals against the decision of the Tribunal.
Application for Discovery
The appellant has made numerous applications for orders for discovery: by applications dated 20 December 2004 and 14 March 2005 (that were not filed) and applications filed 15 August 2005 [FDN 9] and 11 November 2005 [FDN 20], and by an application filed on 26 September 2005 (being an application to amend the application for discovery (FDN 14).
The documents sought by the appellant by way of discovery included policy documents from the second respondent, employment contract between the first and second respondents, the first respondent’s CV, her training records and work appraisals, and any documents in power or possession of the Equal Opportunity Tribunal.
The appellant invoked SCR 58 and SCR 60 in support of his applications for discovery. Rule 58 is concerned with discovery between parties in proceedings at first instance. Rule 60 is concerned with discovery by a non-party and discovery prior to the commencement of proceedings. Neither has direct application to appeal proceedings.
Initially, the appellant sought to justify the applications for discovery by contending that the documents sought were necessary in order that he could decide whether or not an appeal should also be made against the dismissal of the complaint of victimisation by GSL. When GSL was joined as a party to the appeal on its own application, the appellant submitted that the documents were nevertheless necessary in order that this Court could carry out properly a “review” of the Tribunal decision. The appellant referred to s 98(4) of the EOA which provides:
An appeal under this section must be conducted as a review of the decision or order of the Tribunal.
The appellant’s submissions were directed to establishing the relevance of the documents he sought by reference to the matters referred to in the reasons of the Tribunal for dismissing his complaints.
Although an appeal under s 98(4) is not confined to questions of law, it is not a rehearing.[5]
[T]he appeal affords an opportunity to look over the decision of the Tribunal and to identify and correct any error, regard always being had to the fact that the appeal is an appeal from a specialist tribunal, and that in consequence the court will not lightly overturn the opinion of the tribunal on technical issues of discrimination.[6]
It is not necessary to determine whether on such an appeal fresh evidence would be received. What is clear is that there is no basis shown for an order requiring discovery by the respondents (let alone the Commissioner for Equal Opportunity) so that the appellant can ascertain whether something which might be fresh evidence even exists. The appellant himself acknowledged that his appeal against the dismissal of his complaint against the first respondent involved questions of law. Evidence, including any which might be obtained by discovery, is not necessary for such an appeal. Insofar as the appeal against the dismissal of the complaints against GSL involves questions of fact, the critical matters appear to be the nature of the complaints made, and not the existence of evidence to support them.
[5] Smith v St John Ambulance Australia – SA Inc (Unreported, Supreme Court of South Australia Matheson J, 10 December 1991). See also Smith v St John Ambulance Australia – SA Inc (1992) 166 LSJS 231 at 232; Sutton v State of South Australia [1998] SASC 6630.
[6] Smith v St John Ambulance Australia – SA Inc (Unreported, Supreme Court of South Australia Matheson J, 10 December 1991).
For these reasons, I dismiss each of the appellant’s applications for discovery.
Conclusion
For the reasons given above:
1.I dismiss the application for the striking out of the Outlines of Submission of GSL.
2.I dismiss the application for “disjoinder”.
3.I grant the appellant an extension of time to 7 December 2005 for the institution of the appeal.
4.I dismiss the various applications for discovery.
I will list the appeal for hearing before me.