FEDERAL COURT OF AUSTRALIA

Kennedy v ADI Ltd [2002] FCA 1603

PRACTICE & PROCEDURE – refusal of application for extension to time to appeal - no reason for delay - appeal doomed to fail.

Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO

Sex Discrimination Act 1984 (Cth)

Federal Court Rules O52 r 15

Kennedy v ADI Ltd [2001] FCA 614, referred to

Jess v Scott (1986) 12 FCR 187, applied

Haining v Drake (1998) 87 FCR 248, applied

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, followed

WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399, applied

HPM Pty Ltd v Fear [2002] FCAFC 403, applied

Bartlem Pty Ltd v Cox Industries (Australia) Pty Ltd [2002] FCAFC 224, applied

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47

DOROTHY KENNEDY v ADI LIMITED

V 735 OF 2002

MARSHALL J

MELBOURNE

19 DECEMBER 2002

THE COURT ORDERS THAT:

1.      The application be dismissed.

2.      The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 25 May 2001, Ryan J (“the primary judge”) dismissed an application made by the applicant, Ms Kennedy; see Kennedy v ADI Ltd [2001] FCA 614. Ms Kennedy’s application was made pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). She alleged that the respondent, ADI Limited (“ADI”) had engaged in acts of discrimination against her which contravened the Sex Discrimination Act 1984 (Cth).

2                     The primary judge concluded that Ms Kennedy had not discharged her onus of proving unlawful sexual harassment of her by an employee or agent of ADI.

3                     In the proceeding at first instance, Ms Kennedy filed an affidavit sworn on 1 December 2000. That affidavit constituted the bulk of her evidence in chief in the proceeding. Ms Kennedy was cross-examined that affidavit and generally, by counsel for ADI, Mr Staindl.

4                     Order 52 r 15(1) of the rules of Court provides that a notice of appeal from a judgment of single judge must be filed and served within 21 days after the date when the judgment appealed from was pronounced. For current purposes, the relevant date was 15 June 2001.

5                     Order 52 r 15(2) provides that:

“Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.”

6                     Under O52 r 15(6), the application for leave to appeal out of time must be accompanied by an affidavit showing:

(a)        the nature of the case

(b)        the questions involved; and

(c)        the reason why leave should be given

7                     On 22 October 2002, in excess of sixteen months after the expiry of the ordinary time for the filing and serving of a notice of appeal, Ms Kennedy filed an application for an extension of time to file and serve a notice of appeal. Her draft notice of appeal contained three alleged grounds. The grounds were:

“1.       Perjury in relation to Affidavits sworn by ADI Employees (Managers);

2.         Stalking by former Employees of ADI Limited;

3.         Further Employment disruption as a result of my Employment with ADI Limited, due to a no funding as per Decision made 25^th May 2001.”

8                     Ms Kennedy listed as the orders sought in the proposed appeal:

“Re-trial and/or submission of truthful Affidavits by respondents.”

9                     Ms Kennedy filed an affidavit in support of her application. It contained none of the matters referred to in O52 r 15(b) of the rules of Court. The affidavit “re-submitted” her affidavit of 1 December 2000 and sought to expand on certain paragraphs of it.

10                  In Jess v Scott (1986) 12 FCR 187 at 195, a Full Court held that the expression “special reasons” in O52 r 15(2) describes a flexible discretionary power but that the applicant must show a sufficient basis for departure from the ordinary rule that the time limit, provided for in the rules, should be observed.

11                  In this matter, Ms Kennedy has not adduced any reason for her delay in lodging her notice of appeal, apart from it being responsive to a strike out application brought in another matter by ADI; an issue first raised by Ms Kennedy in her oral submissions before the Court. That reason is not a special reason which justifies the delay. No other reason, let alone any special reason, has been provided to explain the delay. That is not to say that there may not be circumstances in which it will be in the interests of justice to extend time despite the lack of an acceptable explanation for the delay; see Haining v Drake (1998) 87 FCR 248 at 252, per Moore J. Although ordinarily there should be some acceptable reason given for the delay; see Haining at 250 per Wilcox and Marshall JJ, quoting from the judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

12                  As was said by a Full Court in WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [7]:

“...where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted.”

Here the delay is not short and injustice will be occasioned to ADI because it will be forced to go to the trouble of defending a proceeding which has no prospect of success.

13                  It would not be in the interests of justice for leave to be given to extend time in this matter given that the prospects of success of the appeal are negligible; see for example WAAD at [9] and HPM Pty Ltd v Fear [2002] FCAFC 403 at [65] and [73].

14                  The role of an appellate court is either the correction of error at first instance or the dismissal of the appeal. To allow an appeal, an appellate court must first find error in the order of the primary judge. An appellant must demonstrate the existence of such error; see Bartlem Pty Ltd v Cox Industries (Australia) Pty Ltd [2002] FCAFC 224 at [89] and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [14] per Gleeson CJ, Gaudron and Hayne JJ.

15                  The prospect of Ms Kennedy demonstrating error on the part of the primary judge is very slight. Her proposed grounds of appeal do not allege any error in any part of the primary judge’s reasoning. In effect, Ms Kennedy seeks to re-agitate issues raised before the primary judge, by expanding upon the evidentiary matters raised before him and commenting on the quality of the opposing evidence. Additionally, she wishes to ventilate matters such as perjury and the conduct of the trial before the primary judge by ADI. Those matters have nothing to do with the correctness or otherwise of the primary judge’s reasons for judgment or his order.

16                  For the foregoing reasons,the application for an extension of time with which to appeal from the judgment of Ryan J of 25 May 2001 will be dismissed.

Associate:

Dated:              19 December 2002