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Where am I now? Lawlink > Administrative Decisions Tribunal of NSW > Practice and Procedures > Practice Notes > Practice Note Number 24
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ADMINISTRATIVE DECISIONS TRIBUNAL INTERNAL APPEALS TO APPEAL PANEL: GUIDELINE 1. Purpose This guideline is to advise parties of the Tribunal’s practices in relation to internal appeals, that is, appeals from Divisional decisions. This guideline replaces Practice Note 5 issued on 18 December 2000 as revised. 2. Relevant Legislation Section 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act) gives parties who are entitled to make an appeal a right to raise any ‘question of law’. An appeal can only be made against the merits of the decision if the Appeal Panel gives permission. The legal term for permission is ‘leave’. 3. Time for Filing The appellant must file a Notice of Appeal within 28 days after the Tribunal gives the appellant oral reasons or written reasons for its decisions (whichever is the later). An application may be made to the Appeal Panel for leave to file an Appeal later than the 28 days. The application for permission (or leave) to file a late appeal forms part of the Notice of Appeal. In completing this part of the Notice the appellant must provide an explanation for the delay in appealing. 4. Payment of fee The Notice of Appeal is not filed until the prescribed fee is:
(b) waived by the Registrar. 5. A Notice of Appeal on a Question of Law A Notice of Appeal on a question of law should: (a) identify the question or questions of law the subject of the appeal; (b) briefly explain why the Tribunal has made an error when answering that question or those questions; (c) set out the orders that the Appeal Panel is being asked to make. 6. Request for leave to extend the Appeal to the Merits If the Notice of Appeal is requesting leave to appeal against the merits of the Tribunal’s decision it should:
(b) set out the reasons why the Appeal Panel should give leave for the appeal to extend to the merits of that decision; (c) set out the orders that the Appeal Panel is being asked to make if leave is granted. 7. Service of Notice of Appeal An appellant must give (“serve”) on each respondent a copy of the Notice of Appeal which has been stamped (“sealed”) by the Registry within 5 working days. 8. Notice of Reply A respondent to an appeal must file a Notice of Reply to an Appeal with the Tribunal and serve it on the appellant within 21 days after being served with the Notice of Appeal. The Notice of Reply should respond to each of the questions of law and/or reasons for requesting leave set out in the Notice of Appeal. Where the respondent to the appeal seeks to have the original reasons for the decision (but not the orders) reconsidered, the respondent must set out in its Notice of Reply under the heading “Errors in the Reasons”, those parts of the reasoning it seeks to have reviewed and identify the question of law and the error made in answering that question or questions. 9. Cross appeal Where the respondent to the appeal also seeks to have the original orders varied (in the nature of a cross appeal) the respondent must lodge its own Notice of Appeal and pay the prescribed fee. Under section 113(3)(a) of the ADT Act, an appeal must be lodged within 28 days of the decision unless the Appeal Panel grants leave under section 113(4). If the respondent’s appeal is lodged within 21 days of the service of the appellant’s Notice of Appeal, the Appeal Panel will regard that as a reasonable period of time. 10. Case Management The President, or a Deputy President appointed to preside at the appeal hearing, is responsible for managing the case and giving directions to the parties as to the written submissions and other material that is to be filed. The Registry will advise parties in writing of the presiding member’s directions. Appeals will be managed in one of three ways:
(b) the parties may be directed in writing to comply with standard directions to file and serve submissions or other material, before the hearing; or (c) the presiding member may convene a directions hearing to decide what steps need to be taken before the matter can be heard. Attendance can be by telephone if requested. 11. Out of Time In cases where a Notice of Appeal was lodged out of time, the directions will include an indication as to whether the question of leave to appeal will be determined at:
(b) concurrently with the appeal at a single hearing. 12. Appeal Materials The Appeal Panel will have the following material before it when hearing an appeal:
(b) a copy of the decision being appealed against; (c) the file in the matter being appealed against, including the transcript if it has already been prepared for the Tribunal below. Parties will need to ask the Panel at the hearing to consider particular material from the original file. The Tribunal is able to supply a sound recording when the transcript is not available. For further information refer to the Tribunal’s Sound Recording and Transcript Policy. The Tribunal does not follow the Supreme Court practice of requiring Appeal Books to be prepared. 13. Appeals against interlocutory decisions of the Tribunal An appeal against a decision that is interlocutory may only proceed with the leave of the Appeal Panel. See section 113(2A) and the definition of an “interlocutory function” in section 24A(1). The appellant must complete the relevant section on the Notice of Appeal giving reasons why leave should be granted. A presidential judicial member assigned by the President makes the decision about whether to grant leave to appeal and may determine the appeal sitting alone, see section 24A(2). 14. Application for Costs See the Tribunal’s Costs: Guideline at www.lawlink.nsw.gov.au/adt. Issued 20 September 2010 |
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