Wsol v John James Memorial Hospital - [2015] ACTSC 378

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	WSOL v JOHN JAMES MEMORIAL HOSPITAL
Citation:	[2015] ACTSC 378
Hearing Date(s):	4 September 2014
DecisionDate:	28 August 2015
Before:	Refshauge J
Decision:	1. The application for an extension of time in which to appeal is dismissed. 2. There be no order as to costs.
Category:	Principal Judgment
Catchwords:	APPEAL – Jurisdiction, practice and procedure – Appeal from the ACAT – Leave to appeal out of time – Discrimination on the grounds of race – Unrepresented litigant – Litigation guardian – Subpoeanaing of further witnesses – Fresh evidence – Workers compensation and damages for discrimination – Delay in delivering decision – Causation
Legislation Cited:	ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (ACT); s 86 ACT Civil and Administrative Tribunal Procedural Directions 2010 (No 1) (ACT); clause 20 Court Procedure Rules 2006 (ACT); r 5072 Discrimination Act 1991 (ACT); ss 11, 121A, 18C, 18D Human Rights Commission Act 2005 (ACT); s 53E Workers Compensation Act 1951 (ACT); Parts 4.3, 4.4, 4.5 Trade Protection Act 1974 (Cth) ss 51AA, 51AB
Cases Cited:	Alexander v Home Office [1988] 2 All ER 118 Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 Committee of Direction of Fruit Marketing v Australian Postal Commission (1979) 2 ALD 561 Eastman v The Queen (2000) 203 CLR 1 Ex parte Currie: Re Dempsey (1968) 70 SR (NSW) 1 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 Harrison v Schipp (2002) 54 NSWLR 612 Henville v Walker (2001) 206 CLR 459 Jeffers v The Queen (1993) 67 ALJR 288 Jones v Dunkel (1959) 101 CLR 298 Klobucar v The Queen [2014] ACTCA 6 Maher v Carpenter (2012) 7 ACTLR 216 Minister for Immigration and Ethnic Affairs v Gungon (1982) 63 FLR 441 Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWR 27 Perry v Smith (1901) 27 VLR 66 Pires v DibbsBarker Canberra Pty Ltd [2014] ACTSC 283 R v Meyboom (2012) 256 FLR 450 Re Coldham; Ex parte Brideson (No 2) (1990) 170 CLR 267 Servos v Repatriation Commission (1995) 56 FCR 377 Sharman v Legal Aid Queensland [2002] FCAFC 196 Wsol v John James Memorial Hospital (Unreported, Discrimination Tribunal of the Australian Capital Territory, Magistrate Stefaniak, DT No 3 of 2008, 17 December 2008 Wsol v John James Memorial Hospital (Unreported, Supreme Court of the Australian Capital Territory, Master Harper, SCA No 1 of 2009, 22 May 2009) Wsol v John James Memorial Hospital [2011] ACAT 81
Parties:	Lolita Wsol (Applicant) John James Memorial Hospital (Respondent)
Representation:	Counsel Ms L Wsol (Self-represented) (Applicant) No appearance (Respondent)
Solicitors Self-represented (Applicant) No appearance (Respondent)
File Number(s):	SCA 68 of 2014
Decision under appeal:	Court/Tribunal: ACT Civil and Administrative Tribunal Before: President Crebbin Date of Decision: 15 September 2011 Case Title: Wsol v John James Memorial Hospital Citation: [2011] ACAT 81

REFSHAUGE J:

The applicant, Lolita Wsol, was employed by the respondent, John James Memorial Hospital (the Hospital), in various…

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.

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Details

Case: [2015] ACTSC 378
Decision Date: 28 August 2015

CaseChat Overview and Summary

Wsol, the appellant, brought an appeal against the respondent, John James Memorial Hospital, after the Administrative Appeals Tribunal (ACAT) dismissed Wsol's claim for discrimination on the grounds of race. The ACAT also awarded costs against Wsol. Wsol sought leave to appeal out of time and to subpoena further witnesses, arguing fresh evidence was available and the delay in delivering the decision was due to the respondent's conduct. The respondent opposed the application, claiming that Wsol's application was an abuse of process, that the application was not in the interests of justice, and that the delay was due to Wsol's unrepresented status and lack of diligence.

The court was required to determine whether leave to appeal out of time should be granted, whether subpoenas should be issued to call further witnesses, and whether the delay in delivering the decision was due to the respondent's conduct. The court also needed to decide whether Wsol's unrepresented status and lack of diligence constituted a sufficient reason for the delay.

The court dismissed the application for an extension of time in which to appeal, finding that it was an abuse of process for Wsol to seek leave to appeal out of time and subpoena further witnesses. The court held that the application was not in the interests of justice, as it would be unfair to the respondent to allow the appeal to proceed with additional evidence. The court also found that the delay in delivering the decision was due to Wsol's unrepresented status and lack of diligence, not the respondent's conduct. The court concluded that the delay did not constitute a sufficient reason to grant leave to appeal out of time.

No order as to costs was made.

Orders

Orders of the court

1. The application for an extension of time in which to appeal is dismissed.

2. There be no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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