D'ARCY v DEPARTMENT OF SCHOOL EDUCATION

Court of Appeal (NSW)|1994-05-09|Before: By P, Kirby P

D'ARCY v DEPARTMENT OF SCHOOL EDUCATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, MAHONEY and PRIESTLEY JJA 9 May 1994, 9 May 1994

CROWN employees - appeal - appeal from Government and Related Employees Appeal Tribunal to Court of Appeal - requirement that appeal be brought within 21 days - appeal brought outside 21 days but within 28 days - motion by employer to dismiss appeal as incompetent

LAW REFORM - appeal - time for appeal from Government and Related Employees Appeal Tribunal to Court of Appeal - period of 21 days provided - period mandatory - observations by Kirby P on desirability of extension to 28 days or provision of discretionary power to extend time.

CROWN - Government and Related Employees Appeal Tribunal - orders to employee to undergo medical examination - whether valid - whether within power of Tribunal - whether susceptible to prerogative type relief. Government and Related Employees Appeal Tribunal Act 1980 s55.

(1) The provision of the Government and Related Employees Appeal Tribunal Act 1980, s55 are mandatory and there is no power in the Supreme Court, whether under the Supreme Court Act, its Rules or the inherent power, to extend the time provided expressly by the Government and Related Employees Appeal Tribunal Act 1980.

Patterson and James v The Public Service Board of NSW [1984] 1 NSWLR 237 (CA) applied;

(2) Accordingly, the purported notice of appeal was out of time and the purported appeal was incompetent and should be dismissed.

Kirby P Before the Court is a motion designed to challenge a notice of appeal filed by Miss Margaret D'Arcy, whom | shall call the appellant in the appeal. The motion is brought on behalf of the Department of School Education which is the respondent to the appeal. The motion is itself out of time. However, it raises a point concerning the jurisdiction of this Court in the purported appeal. It is a fundamental principle, where the jurisdiction of a court is raised for its consideration, the court should satisfy itself as to its jurisdiction and not pretend to have jurisdiction which it does not have.

The point arises in this way. The proceedings out of which the "appeal" comes to the Court were heard in the Government and Related Employees Appeal Tribunal (the Tribunal) between 7 and 10 February 1994. The proceedings were decided on 21 February 1994. An "appeal" to this Court was lodged by Miss D'Arcy on 18 March 1994.

S55 of the Government and Related Employees Appeal Tribunal Act 1980 (the Act) provides that an appeal on a question of law from the Tribunal lies to the Supreme Court only if it is made within twenty one days after the Tribunal's decision.

In Patterson and James v The Public Service Board of NSW [1984] 1 NSWLR 237 (CA), this Court, in a unanimous decision, held that the provisions of s55 of the Act were mandatory. The Court had that it had no jurisdiction, whether under its own Act, the Rules or the inherent power, to extend the time to bring such an appeal within a larger time. In short, the Act had, by its express mandatory language, excluded the powers which would otherwise inhere in this Court to extend the time for bringing an appeal.

Without having considered all of the matters that might have been raised by the respondent in argument, if it were open to the Court to extend the time in favour of Miss D'Arcy I would certainly have been sympathetic to her application. The extension sought would have been quite short. She filed her appeal within twenty eight days, which is now the normal appeal time in this State. She was thus less than a week out of time. Larger defaults are cured by the Court from time to time. However, following Patterson and James, it is the duty of this Court to say, as the Court there said, that the appeal, having been filed outside the twenty one days provided by Parliament, is incompetent. It cannot therefore enliven any jurisdiction in this Court. The notice of appeal must, accordingly, be struck out for that reason.

It is appropriate to say that the rigidity of the rule now enforced may lead to serious injustice in particular cases - perhaps in this case. This will particularly be so where, as here, the employee in question does not have legal assistance. Even competent lawyers could make a mistake and assume that the usual time for appeals to this Court, viz 28 days applied. It would be timely for Parliament to consider the amendment of s55 of the Act at least to extend the 21 days there provided to 28 days. Or preferably to ensure that this Court has the discretionary power to extend time where justice requires that course.

In the course of considering the motion the Court's attention was drawn to certain orders which were made by the Tribunal. Those orders envisaged that Miss D'Arcy would undergo a medical examination. Miss D' Arcy is not content to submit to such examination. She has not conformed to the requirement of the terms of the Tribunal's orders in that respect. A question may arise, as was explained to Miss D'Arcy, were she still willing to undergo the examination and were the Tribunal willing to extend the time for doing so, as to whether "final orders" might not then be made at some future time which could then be challenged in this Court within the twenty one days of such orders, as provided by the Act.

Secondly, a question arises as to the power of the Tribunal to provide orders requiring an employee to undergo medical examination. In the nature of these proceedings the Court has not considered that question in any detail. However, because Miss D'Arcy appeared before the Court today unrepresented, it was explained to her that, apart from its jurisdiction in appeals, this Court has jurisdiction to review the lawfulness of the decisions of tribunals such as this Tribunal. The general nature of the process of the prerogative writs was explained to Miss D'Arcy. It will be a matter for her to decide whether she wishes to prosecute a claim by a summons invoking jurisdiction in the nature of prerogative writs.

URJ D'ARCY v DEPARTMENT OF SCHOOL EDUCATION (Priestley JA) 3

The issue which is raised concerning the power of the Tribunal to make the orders impugned is one of importance beyond Miss D' Arcy's case. It would be no misfortune if some provision of legal assistance, eg by way of pro bono assistance, could be afforded to her in order that this general question might properly be considered by legally trained persons and by the Court, if it comes to it.

However, the formal order which I propose, the reason being found in the decision of Patterson and James v The Public Service Board of NSW (above), is that the purported appeal, brought by Miss D' Arcy by her notice of appeal filed out of time, be dismissed.

Mahoney JA I agree with the conclusion of the President that the appeal is incompetent and I agree with his orders.

KIRBY P: Is there a request that the Court make an order in relation to costs of the purported appeal? Ms McONIE: I will not pursue the question of costs. KIRBY P: The order of the Court is that the appeal is dismissed.

Instructed by: HK Roberts, State Crown Solicitor Counsel for the Opponent: In person

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