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Practice Note Number 11

External Appeals : Appeal Panel Procedures

Practice Note for Date:

03/03/2003

ADMINISTRATIVE DECISIONS TRIBUNAL

PRACTICE NOTE No. 11

External Appeals : Procedures for External Appeals to the Appeal Panel
of the Tribunal

The purpose of this practice note is to advise parties and decision-makers of the procedures applicable to external appeals. External appeals are provided for in Chapter 7, Part 1A of the Administrative Decisions Tribunal Act 1997 (the Act).

Practice Note No. 5 (PN5/00) as re-issued on 16 April 2002 is applicable to internal appeals.

Under s 118B of the Act an external appeal may be made:
(a) as of right, on any question of law, or
(b) by leave of the Appeal Panel hearing the appeal, on any other grounds.

1. Lodgment of Appeal and Reply

1.1 The Appellant shall

(a) File a Notice of Appeal accompanied by any required fee in or to the effect of the approved form within 28 days after written reasons for the decision have been given. An application may be made to the Appeal Panel for permission to file an appeal later than the 28 days.

(b) Attach to the Notice of Appeal a copy of the reasons for decision of the decision-maker appealed against. If that can not be done, an explanation is to be given.

(c) Serve on the decision-maker and each of the persons or organisations that was a party to the decision under appeal a sealed copy of the Notice of Appeal as soon as practicable after lodging the notice.

(d) If the appellant wishes to refer in the appeal to the transcript or other record of the proceedings before the decision-maker, the appellant is to provide the Tribunal with a copy of the whole transcript or record, or relevant parts.

1.2 The Decision-Maker, within 21 days after receiving the Notice of Appeal shall:

(a) advise the Tribunal in writing as to whether or not it elects to be a party to the appeal;

(b) provide the Tribunal, the appellant and the other parties to the appeal with a list of all the documents which were taken into account in making the decision, if that is not already stated in the reasons;

(c) provide the Tribunal with a copy of all documents in that list or as set out in the reasons for decision. The decision maker should indicate when supplying the documents to the Tribunal whether any restrictions apply, or should apply, to the provision of the documents to the appellant or the other parties to the appeal.

1.3 The Respondent

(a) The respondent to the appeal is any person, other than the appellant, who was a party to the proceedings before the original decision maker.

(b) A respondent (including the decision-maker if it elects to be a party to the appeal) must file a Notice in Reply with the Tribunal giving their response to each of the grounds of appeal set out in the Notice of Appeal within 21 days after being served with the notice.

(c) Where as a result of the appellant lodging an appeal, a respondent to the appeal also seeks to have the original orders varied (in the nature of a cross-appeal) the respondent must lodge an appeal by filing and serving a Notice of Appeal. If such an appeal is lodged within 21 days of the service of the appellant’s appeal the Appeal Panel will usually regard this as a reasonable period of time for the purposes of s 118B of the Act.

2. Case Management

2.1 The presidential judicial member (either the President or a Deputy President) appointed to preside at the appeal hearing will be responsible for managing the case and giving directions to the parties as to what they are to provide by way of written submissions and other material.

2.2 The presiding member will give instructions as to the management of the appeal. Appeals will generally be managed in one of three ways:

(a) Where the Notice of Appeal identifies one or more questions of law, and there is no application for the appeal to be heard on any other ground, the presiding member may issue written directions to the parties in relation to the filing and exchange of documents and/or submissions and set a date for hearing.

(b) Where it is not clear from the Notice of Appeal whether the appeal is on a question of law and/or on other grounds, the presiding member will convene a directions hearing to clarify whether the appeal is on a question of law and/or on some other ground. If the appeal is on a question of law only and that question is identified the presiding member will give directions to the parties as to the steps that need to be taken to prepare the matter for hearing. If the appeal is on any other ground, the presiding member will set the matter down for a preliminary hearing to decide whether to grant leave for the appeal to proceed. The presiding member will also give directions as to the filing and exchange of submissions on that issue.

(c) Where it is clear from the Notice of Appeal that the appeal is not on a question of law but is on other grounds, the presiding member will set the matter down for a preliminary hearing to decide whether to grant leave for the appeal to proceed. The presiding member will also give directions as to the filing and exchange of submissions on that issue.

2.3 If a party is unable to attend a directions hearing or a preliminary hearing in person, arrangments can be made for that person to participate by phone.

2.4 If a person requires legal advice, including in relation to what a question of law is and whether an application for leave to appeal on other grounds may be required, the Tribunal registry can provide you with a list of organisations that may be able to assist.

3. Appeal Materials

3.1 The Appeal Panel will have the following material before it when hearing an appeal :

(a) A copy of the decision being appealed against;

(b) Any other documents held by the original decision-maker and produced to the Tribunal;

(c) Any material filed by the parties since the appeal was lodged including any transcript or other record of the original proceedings if provided by the Appellant.

3.2 Parties, unless specifically directed to do so, must not prepare Appeal Books of the kind required in the Supreme Court.

Original Issued: 3 March 2003
Re-issued with amendments 16 March 2004

Judge KEVIN O’CONNOR
President

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