ROADS AND TRAFFIC AUTHORITY v FRANKS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE JA 11 December 1995, 11 December 1995 [1995] NSWCA 392 APPEAL FROM GREAT DECISION TIME WITHIN WHICH TO BRING AN APPEAL - ONSTRUCTION OF Pt1 R9A, R9B of SUPREME COURT RULES Clarke JA Gregory Franks, the opponent today, was employed in a senior position with the Roads and Traffic Authority of New South Wales, the claimant. On 8 December 1994 the claimant demoted and transferred the opponent. Not surprisingly he was not happy with that action and, on 31 January 1995, he appealed to the Government and Related Employees' Appeal Tribunal (GREAT). That appeal was duly heard and, on 15 May 1995, the tribunal handed down reasons for decision in which it found the allegations against the opponent to have been made out and stood over the hearing of the appeal insofar as it related to the question of penalty. On 27 June 1995 GREAT handed down its decision. It did not simply confirm the actions of the claimant but went much further. It dismissed the opponent from his employment with the claimant. A person in the position of the opponent has one further avenue of appeal and that is, pursuant to s55 of the Government and Related Employees' Appeal Tribunal Act 1980 ("The GREAT Act"), by making an appeal within twenty-one days after the date of the tribunal's decision. Those words are my own words. Those in the statute are as follows: "An appeal under s54 shall be made within twenty-one days after... etcetera." The section also provides that the appeal shall be made in accordance with the rules of the Supreme Court. It is common ground that the last day for appealing from the decision of GREAT was 18 July 1995. It is further common ground that as a consequence of a line of authorities in this court commencing with Patterson and James v Public Service Board of New South Wales [1981] 1 NSWLR 237 there is no power in the court or any other body to extend the time for the making of an appeal. Unless, therefore, the opponent made an appeal to this court by 18 July he had, and has, no avenue of redress in respect of GREAT's decision. The claimant has filed the present notice of motion contending that a document filed by the opponent was not filed within twenty-one days of the GREAT decision, that is, that it was not filed by 18 July, and that this purported appeal is incompetent. The question thrown up by the motion is whether the events leading up to and including 18 July constituted the making of an appeal within time. Those facts are as follows. On 14 July 1995 the opponent posted by certified post a notice of appeal without appointment under cover of a letter addressed to the Supreme Court of New South Wales, Civil Appeals. The letter itself referred to the enclosure and, clearly enough, constituted a request for the court to file the notice of appeal which was enclosed. 2 UNREPORTED JUDGMENTS The evidence before the court indicates that the letter was posted certified mail at Eden on 14 July 1995. It was received, presumably by Australia Post in Sydney on 17 July 1995 and was delivered by that organisation on 18 July 1995. Having regard to the fact that the letter was addressed to the Supreme Court it is reasonable to infer that the documents were delivered to the Supreme Court on 18 July. For reasons which have not been explained the notice of appeal was not stamped with the word "Filed" by the Supreme Court until 20 July, or after the time for appeal had concluded. I have said there is no explanation as to why it took the Supreme Court two days to endorse the notice of appeal with the word "File" but it may be that the explanation lies in the fact that the opponent sought dispensation in respect of the filing fee. If lam obliged to find in favour of the claimant it would, in my view, be a sorry day because the opponent, living in financially embarrassed circumstances in the far south coast at Eden, had certainly endeavoured to appeal well before time was up. In saying that I do not wish to be thought to be critical of the claimant for, as its counsel Mr Colefax, has said, if in fact the appeal was not made on or by 18 July 1995 the court had no power to entertain it, and his client was, upon its view of the legal requirements, bound to bring the matter to the attention of the court. Mr Colefax has submitted that an appeal is made for the purposes of s55 of the GREAT Acct by the filing of a notice of appeal in the court. It is not necessary that the notice of appeal be one "with appointment"; it is sufficient if a notice of appeal without appointment is filed within the relevant time. What, however, is critical is that the notice of appeal be filed by the last day because unless that is done it cannot be said that the appeal has been made within the prescribed time. The point really involves two questions which are interrelated. The first is whether an anneal is made by the filing of a notice of appeal in court, and the second is whether what was done by the opponent constituted the filing of a notice of appeal in the court and, if so, on what date. I will put aside the first question for the moment and will concentrate on the second. Mr Colefax has submitted that, pursuant to Supreme Court rules Ptl R9A, it is clear that a distinction is drawn between the lodgment of a document for filing and the actual filing of that document and he points to the words in that rule to the effect that a document is not filed unless it is accepted. This seems to me to be clearly correct and to reflect the fact that the lodging of the document under this rule is akin to the presentation of a bankruptcy petition and is the action of the party, whereas the filing of the document is an act of the court. Consistently with that view the rule provides that a document is not filed, and I interpolate, by the court, unless it is accepted. The difficulty with the submission is that the opponent did not lodge the document in the manner prescribed by R9A. He followed a procedure which authorises the lodgment of notice of appeal and other documents by post. The tule is 9B and, so far as is relevant, reads: "1. Any document for filing in a Registry may be filed under this rule. 2. A document for filing under this rule may (a) be posted to the Registry:... with a request that the document be filed." There is no statement in the rule that the document will not be filed until it is accepted, or unless it is accepted. The rule is silent on that matter. In my opinion the proper construction of the rule leads to the result that if a party posts a document for filing to the Registry with a request that it be filed then, in accordance with the clear intention of R9B(1) the document is treated as URJ ROADS AND TRAFFIC AUTHORITY v FRANKS (Clarke JA) 3 filed under the rule. If that be right the act of acceptance is not an essential element of filing under R9B. This would be odd, Mr Colefax has submitted, because there seems to be little point in imposing a condition of acceptance in respect of one form of filing and not in respect of another. It is also contrary to the view that the act of filing is carried out by the court. I agree that there is an apparent anomaly but there is nothing in R9B that incorporates within it any of the provisions of R9A and no other provision to which I have been referred which would incorporate a condition in R9B to the effect that the document filed in accordance with the procedure there set out, is not formally filed until accepted by the court. In my opinion what occurred here constituted a valid filing under r9B and, whether one chooses the date of posting or date of receipt by the court, the opponent's appeal was filed within time. Upon this approach the opponent made his appeal for purposes of s55, within twenty-one days after the date of the GREAT decision. Another slightly different approach would lead to the same conclusion and that is that a party can make an appeal by lodging a notice of appeal with the court either personally or by post within the relevant period. That approach does not require that the court carry out its part in the filing of the document in the sense that it accepts the document. It does require that the party comply with R9B or present the document for filing in the manner set out in R9A. This construction of s55 emphasises the fact that the time limitation is imposed on the person desiring to appeal so that if he or she fails to make an appeal within twenty one days the right is lost. If, as is generally accepted, the act of filing is that of the court that would not constitute an element in the making of the appeal. All that needs to be done is that the appeal be lodged with the court for filing together with the fee for filing or an application for dispensation. Any other interpretation would, or could, place the appellant in the impossible position that even though he or she lodged the document well within time the right to appeal might nevertheless be lost because the court failed to process the document for some days. That is not, in my opinion, a reasonable view of the section, which fastens on the making - that is lodging - of the appeal. In other words I find it difficult to import into s55 any notion that the court must carry out an act before a party can make an appeal under the section. For these reasons I consider that the opponent made his appeal within the prescribed time and the notice of motion is dismissed. The claimant must pay the opponent's costs. COUNSEL: Claimant: AM COLEFAX Opponent: D BATTEN-BENTLEY SOLICITORS: Claimant: HUNT AND HUNT Opponent: ANDREW FEGENT AND CO