Bilborough & Anor, Re [1999] QSC 115

( (j IN THE SUPREME COURT OF QUEENSLAND Brisbane No.3784 of 1999 Before the Hon. Mr Justice Mackenzie [re: Anti Discrimination Act v Corworth PIL & Ors] IN THE MATTER of the Anti Discrimination Act 1991 and IN THE MATTER of a complaint by Alex Nevena Hardie pursuant to the Anti- Discrimination Act 1991 against Corworth Pty Ltd, Coralpay Pty Ltd and Robert Setterfield and IN THE MATTER of an Order of the Anti- Discrimination Tribunal made 29 March 1999 that Christopher Russell BilbofOugh and National Asset Planning Corporation Pty ltd be joined as Respondents to the complaint and IN THE MATTER of an Appeal pursuant to Section 217 of the Anti-Discrimination Act 1991 in respect of the Order of the Anti- Discrimination Tribunal made 29 March 1999 JUDGMENT - MACKENZIE J. Judgment delivered 3 June 1999 CATCHWORDS: Counsel: Solicitors: Hearing date: _.-................. ,., .. PRACTICE AND PROCEDURE - Appeal of an Anti-Discrimination Tribunal judgment and order - whether the time in which to file a valid notice of appeal had expired. ss 203, 217(1) Anti-Discrimination Act 1991 Mr G C Martin SC for the applicant Ms R Treston for the respondent Deacons Graham & James for the applicant Pilgrim Geddes for the respondent 25 May 1999 -- 1 of 5 -- ( ( IN THE SUPREME COURT OF QUEENSLAND Brisbane Before the Hon. Mr Justice Mackenzie [re: Anti Discrimination Act v COlworth P/L & Ors] No.3784 of 1999 IN THE MATTER of the Anti Discrimination Act 1991 and IN THE MATTER of a complaint by Alex Nevena Hardie pursuant to the Anti- Discrimination Act 1991 against Corworth Pty Ltd, Coralpay Pty Ltd and Robert Setterfield and IN THE MATTER of an Order of the Anti- Discrimination Tribunal made 29 March 1999 that Christopher Russell Bilborough and National Asset Planning Corporation Pty ltd be joined as Respondents to the complaint and IN THE MATTER of an Appeal pursuant to Section 217 of the Anti-Discrimination Act 1991 in respect of the Order of the Anti- Discrimination Tribunal made 29 March 1999 JUDGMENT - MACKENZIE J. Judgment delivered 3 June 1999 The originating summons in this matter seeks to have a judgment and order giving leave to. the complainant to amend the complaint and to join Christopher Russell Bilborough and National Asset Planning Corporation Pty Ltd quashed. -- 2 of 5 -- . . 2 The facts as far as they appear from the evidence before me are that an application was made before the Tribunal constituted by Ms Kathryn McMillan to join the applicants in proceedings pending in the Tribunal. Her decision was reserved on 21 December 1998 and in due course her decision was made. When it was made is critical to the determination of the present summons. The reasons state on their face that the date of the order was 17 March 1999. However, the first notification of the making of the decision to the parties was on 25 March 1999 when telephone calls were made by the Registrar of the Tribunal to the solicitors for the applicants and for the respondents in the present proceedings advising that the decision had that day been "handed down" or "finalised". The Registrar spoke to the solicitor for the respondent to the present proceedings who asked for a copy of the reasons to be posted to him. She phoned the firm representing the applicants but was unable to speak to the solicitor handling the matter. The message was left either with a person or on an answering machine to the effect that she would post the reasons to the solicitors but if they wished to the town agents could collect them on the following day (Friday 26 March 1999). She put copies in the internal mail and concedes that they probably would not have been dispatched through ~he ordinary course of the post until 26 March 1999. They were received by the solicitors . 0 for the applicants in the mail on Monday, 29 March 1999. A preliminary point has been taken that the appeal is out oftime. Section 217(1) of the Anti- Discrimination Act 1991 provides for an appeal from a decision of the Tribunal on a question of law. An appeal may only be made: (a) within 28 days after the day on which the decision was made; or (b) if the Tribunal did not give written reasons at the time the decision was made and the party making the appeal subsequently asked it to do so - within 28 days after the day on which the party received the reasons in writing. -- 3 of 5 -- 3 It was not submitted that the case fell within (b) since written reasons were prepared without request of the parties and the evidence is that the reasons had been prepared by the time the Registrar advised the solicitors for the parties that the decision had been made. If the date of 17 April is disregarded, as both parties were prepared to do since the information from the Registrar suggested that the decision had been made, notwithstanding the date on the written reasons, on 25 March the time for appeal expired on 22 April 1999. The notice of appeal was not filed until 23 April 1999. There is nothing that suggests that there is jurisdiction to extend time if the appeal is out of time and neither party submitted that there was such a power. In my view the appeal is out of time. The decision was made on 25 March. That was the date upon which the fact that the decision had been made was communicated to the Registrar and the reasons for the decision were in the hands of the registry for distribution. The parties through their solicitors were notified that the decision had been made on that day. I am satisfied that the physical delivery of the reasons to the parties was not critical. It was done promptly. The rules of the Anti-Discrimination Tribunal (Rule 12) require the Registrar as soon ( as practical after the publication of the reasons to give a copy of them to the Commissioner and the parties to the proceedings. So far as the parties are concerned that was done in this case. In my opinion the summons must be dismissed with costs to be taxed. It was submitted that the provision in s 203 of the Act requiring the hearing to be held in public also required the public delivery of the decision. The provision is subject to the qualification that the Tribunal may decide of its own motion to conduct all or part of the hearing in private. Section 203 is not directed at the question of how the fact that a decision has been made is to be made known to interested persons. According to the evidence, the procedure of not re-convening the Tribunal to pronounce its decision is adopted to save cost. In my view, even if publishing the decision is part of -- 4 of 5 -- 4 the "hearing" it is not inconsistent with s 208 (l)(c) to adopt the practice which is deposed to in an individual case. If the procedure is followed it is highly desirable that the date upon which the Tribunal's decision was made is accurately endorsed on the face of the reasons so that the parties can be in no doubt about the relevant date. The effect of a failure on the part of the Registrar to give a copy of the reasons to the parties as soon as practical after the publication of the reasons is academic in this case since I am satisfied that the rule was c.omplied with. o The summons is dismissed with costs to be taxed. ,. , , .. c) i ()i_./ I -- 5 of 5 --