D'ARCY v DEPARTMENT OF SCHOOL EDUCATION [1994] NSWCA 77

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

[1994] NSWCA 77

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

APPEAL — time for — Government and Related Employees Appeal Tribunal — appeal to Supreme Court (Court of Appeal) — requirement that appeal be brought within 21 days

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.

Held:

(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.

Held: Requirement mandatory - no power to extend.

ORDERS:

Appeal 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.