Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Ekermawi v Harbour Radio Pty Ltd [2013] NSWCA 54
• Hearing dates: 8 March 2013
• Decision date: 08 March 2013
• Before: Beazley P; Barrett JA; Emmett JA

Decision

The summons for leave to appeal is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: REFUSAL OF LEAVE TO APPEAL - failure to bring appeal in appropriate court - Supreme Court Act, s 51 - self-represented litigant - Court's obligation to provide a fair hearing - provision of sufficient information as to the practice and procedure of the Court as is reasonably practicable to ensure a fair trial.; REFUSAL OF LEAVE TO APPEAL - Administrative Decisions Tribunal Appeal Panel refusal to extend time to appeal from Administrative Decisions Tribunal - no sufficiently arguable case that discretion exercised incorrectly.
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Anti-Discrimination Act 1977; Supreme Court Act 1970
• Cases Cited: Hamod v State of New South Wales [2011] NSWCA 375; Jeray v Blue Mountains City Council (No 2) (2010) NSWCA 367
• Category: Principal judgment
• Parties: Sam Ekermawi (Applicant); Harbour Radio Pty Ltd (First Respondent); Nine Network Australia Pty Ltd (Second Respondent)
• Representation: Counsel: P D Lange (Applicant); K Eastman SC (Respondents); Solicitors: Baker & McKenzie (Respondents)
• File Number(s): CA 2012/51171
• Publication restriction: No

Decision under appeal

• Jurisdiction: 9111
• Citation: Ekermawi v Administrative Decision Tribunal [2011] NSWSC 1503
• Date of Decision: 2011-12-01 00:00:00
• Before: Davies J
• File Number(s): SC 2011/335510

Judgment

1 THE COURT: The applicant, Mr Ekermawi, seeks leave to appeal from the judgment of Davies J in the matter of Ekermawi v Administrative Decision Tribunal [2011] NSWSC 1503 in which his Honour summarily dismissed the applicant's summons filed on 20 October 2011. The summons before the Court today for leave to appeal has been listed for a concurrent hearing with the appeal if the Court determines that leave to appeal ought to be granted.

2 The Court required the question of leave to be argued in its entirety before embarking upon the appeal. The Court has determined that leave to appeal should be refused for the reasons which follow. The applicant's summons filed on 20 October 2011 on its face was an appeal from two decisions of the Administrative Decisions Tribunal dated 10 June 2010 and 4 August 2010 respectively.

3 In the first of those decisions being Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145 the Administrative Decisions Tribunal dismissed the applicant's claim brought under the Anti-Discrimination Act 1977 against those respondents.

4 In the second decision being Ekermawi v Harbour Radio Pty Ltd & Ekermawi v Nine Network Television Pty Ltd (No 2) [2010] NSWADT 198 the Administrative Decisions Tribunal ordered the applicant to pay the costs of the respondents.

5 Pursuant to the Administrative Decisions Tribunal Act 1997, s 113 an appeal lies from a decision of the Tribunal to the Appeal Panel of the Tribunal. The time in which an appeal is to be filed is 28 days after the reasons for the decision appealed from was given. On 18 July 2011, more than 12 months after reasons for the two decisions referred to above had been given, the applicant filed in the Appeal Panel a notice of appeal against the decisions. Accordingly, the applicant needed and he sought an extension of time within which to appeal. On 6 October 2011 the Appeal Panel refused an extension of time: see Ekermawi v Harbour Radio, Ekermawi v Nine Network [2011] NSWADTAP 44.

6 An appeal lies to the Supreme Court on a question of law against a decision of the Appeal Panel: see the Administrative Decisions Tribunal Act, s 119(1), where the appeal is against, inter alia, an interlocutory decision an appeal may only be brought with the leave of the Court: see Administrative Decisions Tribunal Act, s 119(1A).

7 Pursuant to the Supreme Court Act 1970, s 48 an appeal from a decision of the Appeal Panel is assigned to the Court of Appeal. The applicant's summons in the Supreme Court, which was filed on 20 October 2011, sought leave to appeal from the decisions of the Administrative Decisions Tribunal. Those decisions were specifically specified in the summons. However, no appeal lies to the Supreme Court from decisions of the Administrative Decisions Tribunal. The only appeal available as is apparent from the provisions of s 119 to which reference has already been made, is from a decision of the Appeal Panel.

8 The respondents wrote to the applicant on 2 November 2011 advising him that his summons was misconceived and offering him a compromise arrangement whereby, if he withdrew his summons, the respondents would not seek costs. The applicant did not accept that proposal. It should be pointed out that in the letter of 2 November 2011, the respondents' legal representatives advised the applicant first that, pursuant to s 48 of the Supreme Court Act, an appeal from a decision of the Appeal Panel lay to the Court of Appeal and not to the Common Law Division of the Court. The letter also pointed out that the right of appeal lay under s 119 of the Administrative Decisions Tribunal Act. They set out that provision and they bolded, by way of emphasis, the words that the appeal lay "against any decision of the Appeal Panel". They pointed out to him that neither the substantive proceedings nor the cost proceedings were proceedings before an appeal panel of the Tribunal and accordingly neither the Supreme Court in a division nor the Court of Appeal had jurisdiction to hear an appeal from the decisions specified in his summons.

9 The letter also pointed out to the applicant that there were problems with the manner in which he had formulated the grounds of appeal in his existing summons and they gave him notice that they proposed to file a notice of motion to strike out his summons.

10 The respondent's notice of motion was heard by Davies J and determined on 1 December 2011. His Honour dismissed the proceedings essentially for two reasons: first, because no appeal lay from a decision of the Administrative Decisions Tribunal to the Supreme Court; and secondly, because an appeal from the Appeal Panel should, in any event, have been commenced in the Court of Appeal. By his proposed amended notice of appeal, should the applicant have been granted leave to appeal, the applicant would have argued that his Honour erred in two respects: first, in failing to apply the provisions of the Supreme Court Act, s 51(1)(b) which empowered his Honour to remove the summons to the Court of Appeal or, alternatively, in failing to himself hear and determine the matter pursuant to the Supreme Court Act, s 51(1)(d).

11 The second proposed argument on the appeal, if leave were to be granted, was that his Honour erred in failing to treat the applicant's summons of 20 October 2011 as if it was an appeal against the decision of the Appeal Panel or at least to advise the applicant to amend his summons so that it was an application to appeal from the decision of the Appeal Panel and, if necessary, provide him with an adjournment, if he wished to amend.

12 In support of his argument the applicant relied upon the fact that in the hearing before Davies J, he was a self-represented litigant. He argued that it was incumbent upon his Honour to ascertain the substance of his application and to advise him of the processes that in fact should have been filed and to have afforded him an opportunity to amend his summons so that the matter before the Court was properly constituted.

13 It is undoubted that the Court has an obligation to provide a fair hearing to all litigants. Insofar as a litigant may be self-represented, the Court in a series of decisions has explained what that duty of fairness involves. It includes, as was pointed out by the former President of this Court, Justice Allsop, in Jeray v Blue Mountains City Council (No 2) (2010) NSWCA 367 that a trial judge should take appropriate steps to ensure that a party appearing unrepresented has sufficient information about the practice and procedure at the Court as is reasonably practicable for the purposes of ensuring a fair trial.

14 In the matter of Hamod v State of New South Wales [2011] NSWCA 375 the role of the Court in ensuring a fair hearing was examined and the same conclusion was reached, namely, that the Court's obligation in the case of a selfrepresented litigant was to give sufficient information as to the practice and procedure of the Court to ensure that there was a fair trial to both parties.

15 It is apparent from Davies J's judgment, as it was from the transcript of the proceedings before his Honour, that his Honour considered that, in circumstances that where the applicant had been clearly advised of the appropriate procedure and of the rights of appeal that he had by the respondent's solicitors in their letter of 2 November 2011, the applicant had been sufficiently informed of the procedural matters that were required in order for the applicant to bring his process into a justiciable form before the Court. There was no error in his Honour's approach.

16 There is no doubt that his Honour could have taken steps under the Supreme Court Act, s 51 but for the reasons now given, that is irrelevant to the fair determination of the matter. The difficulty that the applicant faces at the end of the day in this matter is that the only right of appeal that flowed from the proceedings that he commenced in the Administrative Decisions Tribunal, was an appeal from the Appeal Panel's refusal to grant an extension of time.

17 The Appeal Panel had refused an extension of time to appeal from the decisions of the Administrative Decisions Tribunal on two grounds: the first was the lengthy delay and the second was that no error of law had been identified and therefore any appeal to the Appeal Panel lacked merit. It was argued before this Court that delay did not necessitate the refusal of leave. That may be so as a matter of strict principle but it is a strong discretionary factor to which the Appeal Panel was entitled to have regard. The Court has reached the conclusion that, even if the applicant, either now or at some earlier point of time, had been able to transform his process in this Court to an appeal from the decision of the Appeal Panel, that appeal would not have succeeded. The applicant has not satisfied the Court that there is a sufficiently arguable case that the Appeal Panel erred in its discretionary decision in refusing leave in extending the time in which to appeal from the decisions of the Administrative Decisions Tribunal. Accordingly, the order that the Court proposes to make is that the summons for leave to appeal be dismissed with costs.

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Decision last updated: 13 March 2013