Appeal Dismissed: Amount of Damages for Workplace Harassment and Victimisation

The claimant appealed the amount of damages awarded for victimisation and harassment, arguing the amount was insufficient. The Tribunal dismissed the appeal, finding no merit and no extenuating circumstances justifying an out-of-time appeal.

Appeal Panel

CITATION: [NAME] -v- Chief Executive Officer, [NAME] ([NAME]) [2000] NSWADTAP 15 APPLICANT [NAME] PARTIES: RESPONDENT Chief Executive Officer, [NAME]: 999016 HEARING DATES: 19/07/2000 SUBMISSIONS CLOSED: 07/19/2000 DATE OF DECISION: 07/19/2000

Principal matter

DECISION UNDER APPEAL: BEFORE: Latham M - DCJ (Deputy President); Goode P - Judicial Member; [NAME] - Member CATCHWORDS: leave to appeal out of time MATTER FOR

DECISION: Principal matter FILE NUMBER UNDER APPEAL: 107 of 1998 DATE OF

DECISION UNDER APPEAL: 06/15/1999 LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: REPRESENTATION: In person [NAME], barrister ORDERS:

1. The appeal is dismissed;

2. No order as to costs on the appeal.

1 The appellant, [NAME], appeals to this Panel against a decision of the Tribunal of 15 June 1999. That decision was in her favour in so far as it found the appellant was subject to victimisation and harassment during the course of her employment. The sum of $12,500 was awarded to the appellant. 2 There is no reference within the Tribunal's decision to the particular heads of damages encompassed by the award but the Panel is satisfied that it was awarded for pain and suffering when account is taken of the settlement of previous workers' compensation proceedings brought by the appellant. The history of the workers' compensation proceedings was before the Tribunal and has been canvassed at length before us. 3 The appellant's complaint for the purposes of this appeal is the amount of the award. The appeal was lodged over three months after the decision was handed down, thus the threshold question on which the Panel heard submissions was the grant of leave to the appellant to prosecute the appeal. 4 After hearing from the appellant and the respondent and considering the documents admitted as exhibits 1 and 2 in these proceedings, the Panel is of the view that this is not an appropriate matter in which to exercise the discretion to grant leave to appeal. That view is founded upon the following: 5 The appellant was unrepresented before the Tribunal below but had consulted a duty solicitor at the Tribunal in the course of the matter. The appellant lodged a statement of claim in the Supreme Court seeking to appeal the Tribunal's decision on 23 June 1999, that is one week after the Tribunal's decision was delivered. Her choice of jurisdiction appears to have been deliberate in the sense that she had in the past sought and did subsequently seek and obtain legal advice and representation in respect of a number of legal proceedings instituted by her in different jurisdictions including the Workers' Compensation Commission, Supreme Court and the District Court. 6 Between 6 September and 15 December 1999 she was represented by [NAME] of counsel in this Tribunal and in the Supreme Court. [NAME] drafted a number of documents including a statement of claim in both jurisdictions on the appellant's behalf, however, the appellant terminated Ms [NAME]'s retainer in January of this year. 7 On a number of occasions since commencing the proceedings in the Supreme Court in June of 1999 the appellant has consulted both the Supreme Court and the District Court Registrars to further her claims in those jurisdictions. She appears to have become reasonably conversant with the rules in those jurisdictions. 8 On 2 August 1999 the appellant filed proceedings in the District Court alleging professional negligence in respect of her workers' compensation proceedings. Whilst the appellant is from a non-English speaking background, she has demonstrated a sufficient facility in the English language to allow her to negotiate complex legal forms and procedures. 9 In short, the appellant's activism in litigation in general terms persuades the Panel that there are no extenuating circumstances warranting the grant of leave. In addition we are of the view that even if leave were granted, there is no prospect of success on the merits of the appeal. That is another factor which has weighed in the balance in the exercise of the Panel's discretion. 10 Accordingly the appeal is dismissed. [NAME] we have not forgotten your submission in respect of costs but we decline to make any order in relation to costs on the appeal.

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