Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Jamal v State of New South Wales [2014] NSWCA 199 Hearing dates: 18 June 2014 Decision date: 27 June 2014 Before: McColl JA at [1]; Basten JA at [2] Decision: (1) Dismiss the application to extend time within which to file a notice of appeal. (2) The summons seeking leave to appeal not having been timeously filed and served is struck out. (3) The applicant shall pay the respondent's costs in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PRACTICE AND PROCEDURE - appeal - decision of Appeal Panel of Administrative Decisions Tribunal - application to extend time - notice of intention to appeal filed out of time - summons seeking leave to appeal filed shortly out of time - summons not served until a month after filing - no explanation of delay - whether prejudice to respondent from delay - whether applicant has a fairly arguable case - Uniform Civil Procedure Rules 2005, r 51.9 Legislation Cited: Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5 Administrative Decisions Tribunal Act 1997 (NSW), ss 89, 112, 119 Civil and Administrative Tribunal Amendment Act 2013 (NSW), Sch 2 Interpretation Act 1987 (NSW), s 76 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), rr 51.2, 51.8, 51.9, 51.16 Cases Cited: Tomko v Palasty (No 2) [2007] NSWCA 369; 71 NSWLR 61 Category: Principal judgment Parties: Jon Jamal (Applicant) State of New South Wales (Respondent) Representation: Counsel: Applicant self-represented Mr J Mattson, Solicitor (Respondent) Solicitors: Applicant self-represented Bartier Perry (Respondent) File Number(s): CA 2014/10462 Decision under appeal Jurisdiction: 9113 Date of Decision: 2013-11-25 00:00:00 Before: D Patten - Deputy President A Scahill - Judicial Member J Newman File Number(s): ADT 139032 Judgment 1McCOLL JA: I agree with Basten JA. 2BASTEN JA: On 8 March 2012 the applicant lodged a complaint against the New South Wales Police Force, alleging discrimination on the basis of race and sex in the provision of goods and services. The Anti-Discrimination Board referred the complaint to the Equal Opportunity Division of the Administrative Decisions Tribunal for hearing. 3On 9 and 10 May 2013 the Tribunal, constituted by the Deputy President, Magistrate Hennessy, and two non-judicial members, J Schneeweiss and A Lowe, conducted a hearing. On 29 July 2013 the Division handed down its decision, dismissing the complaints. 4On 13 August 2013 the applicant lodged a notice of appeal under s 112 of the Administrative Decisions Tribunal Act 1997 (NSW) ("the Tribunal Act") to an Appeal Panel of the Tribunal. (The Tribunal Act has since been renamed the Administrative Decisions Review Act 1997 (NSW), provisions relating to the Tribunal repealed and the function of conducting reviews transferred to the Civil and Administrative Tribunal: Civil and Administrative Tribunal Amendment Act 2013 (NSW), Sch 2.) The notice of appeal alleged errors of law and sought leave to extend the appeal to the merits of the Tribunal's decision. On 25 November 2013, the Appeal Panel, constituted by Deputy President Patten, Judicial Member Scahill and J Newman delivered the decision of the Panel. So far as the appeal related to questions of law, it was dismissed. The Appeal Panel then provided the applicant with an opportunity to seek leave to extend the appeal to deal with the merits of the decision of the Equal Opportunity Division. Having heard the submissions of the parties, the Appeal Panel dismissed the application to appeal with respect to the merits. 5Although the applicant had been present when the Appeal Panel gave its decisions and reasons, on the following day, 26 November 2013, the Registrar of the Tribunal sent a notice to the applicant advising that the Appeal Panel had, on the previous day, made an order dismissing the appeal. The notice stated that the applicant might request the Tribunal to give written reasons for its decision. Such a request was made and complied with by sending the applicant, on 18 December 2013, a transcript of the oral reasons delivered by the Tribunal, in accordance with s 89(4) of the Tribunal Act. 6A right of appeal was available, on a question of law, against any decision of the Appeal Panel: Tribunal Act, s 119(1). As the decision of the Appeal Panel was a final decision, no leave was required: cf s 119(1A). 7There is a question as to whether the proceedings in this Court are out of time, as the respondent asserted. On 13 January 2014, the applicant filed a notice of intention to appeal. If that notice had been filed in time, the applicant would have had three months within which to file his notice of appeal, otherwise it was necessary to file a notice of appeal within the 28 day period specified for a notice of intention. 8The notice of intention to appeal (or a notice of appeal) should have been filed and served within 28 days "after the material date": Uniform Civil Procedure Rules 2005 (NSW), r 51.8. According to the definition of the term "material date" in r 51.2, it is the date "on which the decision is pronounced or given" (not being a judgment, verdict or order in proceedings in the Supreme Court). The respondent submitted that time ran from the day on which the decision was delivered by the Appeal Panel in the presence of the applicant. That would be the correct analysis with respect to the judgment of a court. A notice of intention to appeal does no more than preserve for the prospective appellant a period within which to consider his or her position. Often that will allow a party to obtain (as in this case) written reasons before lodging an appeal. 9On the other hand, where a party has a statutory entitlement to written reasons for a decision, it is arguable that the material date is the date on which those written reasons are given to the party, or even when they are received: cf Interpretation Act 1987 (NSW), s 76. The better view is that, at least when a decision and reasons are given in the presence of the party, that day is the "material date" under r 51.2. However, the matter was not fully argued by either party and the case can be disposed of without determining this issue. 10Even assuming, favourably to the applicant, that the later date was the material date, the notice of intention to appeal was three days late. The period included both the Christmas and New Year holidays. No real prejudice was suffered by the respondent as a result of that brief delay and, assuming an arguable case, a litigant in person would usually be given an extension of time for such a period. However, on the basis that a notice of intention to appeal should have been filed and served within 28 days of 25 November 2013, the last available date was 23 December 2013. On that basis a delay until 13 January 2014 would be significant. 11An issue arose in the course of the proceedings as to when the applicant's summons seeking leave to appeal was served. The respondent submitted (without evidence) that it was served on 22 April 2014. In the course of the hearing, the respondent tendered evidence, being an email from the applicant dated 22 April 2014, annexing the summons seeking leave to appeal. 12The applicant sought and was granted an opportunity to put on evidence in reply if he disputed the date on which the material was sent to the respondent. The document ultimately filed did not dispute the date, but noted that it was the first business day after the Easter vacation, stating that the last day for service was 18 April 2014, a public holiday. 13As explained above, on no view was the last day for service a date in April. Even on the basis that time ran from 18 December 2013 and a timely notice of intention was filed and served, a notice of appeal should have been filed and served by 18 March 2014: UCPR r 51.9. If time ran from 25 November, the last date for filing and serving a notice of appeal was 25 February 2014. The present summons was filed on 21 March 2014, but not served on the respondent until 22 April 2014. If the only extension related to the filing of the summons three days late, and again assuming an arguable case, it might well be appropriate to extend time for that period. However, it is necessary to extend time until the date on which it was served on the respondent, namely 22 April 2014, and on the better view that involved an extension from 25 February or (if an extension for the notice of intention were not granted) from 23 December 2013: r 51.16(1)(c). 14Again, the Court could not be satisfied that the respondent has suffered prejudice as a result of the delay. On the other hand, there has been no explanation for the delay in serving the respondent and it is relevant to consider whether the applicant has a fairly arguable case: Tomko v Palasty (No 2) [2007] NSWCA 369; 71 NSWLR 61 at [55]. 15To the extent that it is possible to discern grounds of appeal, they must be identified in the summons seeking leave to appeal: no draft notice of appeal was filed. That summons was prepared on the basis that a question of law could be identified by reference to the paragraphs in s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). That Act has, of course, no direct relevance to litigation in this Court, the statutory provision for appeal being found in the Tribunal Act or, if judicial review were sought, in s 69 of the Supreme Court Act 1970 (NSW). 16It appears that the grounds intended to be relied upon were as follows: (a) procedural unfairness by the Panel in refusing an application to adjourn the hearing of the appeal on 29 July 2013; (b) refusing the applicant his request to present evidence, and (c) abusing the discretion of the Court in ignoring the applicant's official evidence. 17With respect to the adjournment application, there is in the appeal papers (p 23) a handwritten document stating that the appellant seeks an adjournment of the appeal "because he does not believe he has enough time to present his appeal today." The document explained that the interpreter had only come at midday and, allowing a break for lunch, there were only three hours in which to argue the case. The document has a Tribunal stamp indicating that it was received on 25 November 2013, the day of the hearing before the Panel. 18The Court was not taken to any record of proceedings in the Appeal Panel dealing with an application for an adjournment. In his written submissions, the applicant stated (par 15) no more than that he had indeed sought an adjournment "because there was not enough time to bring his case to the tribunal". He stated that the Deputy President "refused this application and pushed the appellant to choose some appealing reason to discussed only". 19There is no evidence that the matter could not properly have been completed within the hours available, nor that it was not completed in that time. The fact that the request for an adjournment was refused does not provide any basis for a complaint of procedural unfairness. Something more is required, but nothing material was proffered. 20The respondent submitted that the refusal of an adjournment would constitute an interlocutory decision requiring leave. However, if there had been procedural unfairness in refusing the adjournment application, that may well have infected the final decision, so that the submission may not provide the correct analysis. Nevertheless, the alternative proposition that the ground lacks merit should be accepted. 21The application to adduce evidence, said to have been improperly rejected, and the abuse of discretion with respect to what was described as 'official evidence', arose on the application to extend the appeal before the Appeal Panel to the merits of the decision before the Equal Opportunity Division. 22Some discussion ensued between the Appeal Panel and the applicant with respect to this application. During that discussion, the applicant relied on a claim that one of the police witnesses, Constable Semaan, had been lied in stating that a police watch alert had been placed on the applicant and his children at "the airport", while they were overseas. He sought to rely upon a letter from the Department of Immigration and Citizenship dated 31 July 2013 stating that the Department had no records of any "PACE alert" for Mr Jamal and his children. This was said to demonstrate that Constable Semaan had lied in preparing his affidavit and a COPS report which stated, "iAsk approved. Placed a Pace Alert on ... Jon Jamal." The applicant told the Appeal Panel that he was in fact arrested on his return with his children, at Sydney international airport: Tcpt, 25/11/13, p 5. Constable Semaan gave evidence in his affidavit that the alert was deleted on 27 August 2011. The Deputy President noted that the Department's letter, although a response to a request to provide information as to records between 25 April 2011 and 25 April 2012, stating, in the present tense, that there were no existing records, may not have provided a full answer to the request: Tcpt, p 9. The Deputy President continued: "But in any event we do not regard the Department's letter without more as undermining the credibility of Constable [Semaan]." 23The Panel declined to grant leave to appeal on the merits. 24The factual finding as to the possible significance (or lack thereof) of the letter from the Department was undoubtedly open to the Appeal Panel. At its highest, information from the Department that was inconsistent with the evidence of the officer and the COPS report might have affected the credibility of the officer, if put to him in cross-examination. There is no power in this Court to review factual findings, either of the Appeal Panel or those made in the Division. 25The grounds relied upon do not raise any fairly arguable question of law. Accordingly, it is not appropriate to grant an extension of time within which to file either a summons seeking leave to appeal or a notice of appeal. 26The application must be dismissed. The applicant must pay the respondent's costs in this Court. The Court should make the following orders: (1) Dismiss the application to extend time within which to file a notice of appeal. (2) The summons seeking leave to appeal not having been timeously filed and served is struck out. (3) The applicant shall pay the respondent's costs in this Court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2014