NSW If I have 28 days to lodge an appeal, does 'lodge' mean post?

[faustus]

Suppose I wanted to appeal a court decision, and I have to lodge it within 28 days.

If on day 28, I go to the post office and send that appeal via registered post, have I lodged my appeal on time?
The reason why I ask is that the other party is claiming that I have not lodged it on time. I am pretty sure they are making this up, but I can't find anything on the interpretation of the term lodge.

Any help appreciated!

 

[Docupedia]

Depending on the rules in question, you’ll probably find the legislation says that the appeal must be filed within 28 days, for example: UNIFORM CIVIL PROCEDURE RULES 2005 - REG 50.3 Time for appeal

In practical terms, an appeal is not lodged/filed until it is received by the court and processed as meeting the requirements for filing (E.g. is it on the right form, is it completed with the required information, is it signed, has the correct fee been paid, and so on). Both lodgement and filing infer that the documents have been received as correct - not just received, but ‘received as correct’. Broken into steps:
1. Sending to the court registry (in person, by email, by post)
2. Registry receives the documents.
3. Procedural requirements are met and documents are filed, given an appeal number, sealed, and payment receipted.

Doing all of 1, 2, and 3 constitutes filed/lodged. What you’re referring to is only step 1.

Therefore just posting it cannot satisfy the requirements. You could turn up to the court registry on the 28th day with defective documents and be turned away - and still miss out on the appeal period - because step 3 is not completed.

 

[sophistrycat]

It's funny you mention Uniform Civil Procedure Rules 2005.

What I'll do is explain this a little better. The matter relates to NCAT decision under the Administrative Decisions Tribunal (ADT).

Now, just to explain my reasoning, suppose I receive an internal review whose findings I am dissatisfied with. I have to lodge my application within 28 days. This is the information that I was given:

If the Applicant is dissatisfied with the outcome of this review in relation to the
findings and recommended actions, the Act provides the right to lodge an appeal to
the NSW Civil and Administrative Tribunal within 28 calendar days from receipt of
this correspondence (plus 5 calendar days for postage). The contact details for this
agency are provided below:…

Here, we see that I have 28 days (plus 5 calendar days for postage). This tells me that if I send it via registered post on day 28, I have lodged my application within 28 days, even if it arrives, say two weeks later. If this was not the case, it would be more like:

23 days (plus 5 days calendar days for postage)

Now, my case relates to an appeal. I have to lodge my appeal within 28 days. My reasoning is that if the above applies to appealing an internal review decision at the ADT, why would it be any different in relation to appealing the very decision relating to that internal review at the ADT?

After I posted my question, I came across the following in Uniform Civil Procedure Rules 2005:

Division 2 Filing of documents
4.10 Filing generally (cf SCR Part 1, rule 9A)
(1) A person may lodge a document for filing in relation to any proceedings—
(a) by delivering it to an officer of the court in the registry, or
(b) by sending it by post to the registry’s business address.
(c) (Repealed)
(2) Any person may lodge a document with an officer of the court for the purpose of its being filed
in relation to proceedings, or proposed proceedings, in the court.
(3) Unless acceptance of the document is subsequently refused by the court or by an officer of the
court, a document is taken to have been filed when it is lodged for filing.

Here, it says that the day I filed a document for any proceedings is the date that I've posted it.

I had a call over today. Respondent said that I filed my appeal out of time and they're going to oppose my leave for extension of time. I said I don't need an extension of time, I lodged my application on time. I then pointed out the above. The judge stopped me, he said that the Uniform Civil Procedure Rules aren't used. Judge also said he said that even if it was out of time, it doesn't mean that my appeal would automatically be rejected, if it would be unjust to refuse do hear it

I have never heard of this before. The point I make is as follows.

I received a decision on 18 august 2021. I posted my appeal via registered post on 15 September 2021 -- day 28. it was received on 21 September 2021 (28 days plus 6 calendar days).

Also, if it makes a difference, I think that the day I received the decision doesn't count. It's actually the next day. I came across the following, regarding reckoning of time for the NCAT:

6 Reckoning of time
(1) Any period of time fixed by these rules, or by any order or other decision of the Tribunal or a registrar or by any document in any proceedings, is to be reckoned in accordance with this rule.
(2) If a time of one day or longer is to be reckoned by reference to a given day or event, the given day or the day of the given event is not to be counted.
(3) If, apart from this rule, the period in question, being a period of 5 days or less, would include a day or part of a day on which the Registry is closed, that day is to be excluded.
(4) If the last day for doing a thing is, or a thing is to be done on, a day on which the Registry is closed, the thing may be done on the next day on which the Registry is open.

I think this means means that it was lodged on 28 days (plus 5 calendar days for postage).

I find all of this really distressing. Any help would be appreciated.

 

[Docupedia]

Okay, you've got some of your logic twisted by the looks of it.

For a start, the '(plus 5 calendar days for postage)' applies to calculating the date you are taken to have received the reasons. It's not so much to do with postage times as it is to ensure you are given the 28 day window, which is a pretty standard appeal time frame. It doesn't work the other way around. The Tribunal is not under a strict time frame to get the decision to you - but you are under a strict time frame to get an appeal in. It may appear to be unfair, but the point is they're not directly comparable.

The important part here is what the Civil and Administrative Tribunal Rules has to say on the matter. The 'judge' is correct, the Uniform Civil Procedure Rules do not apply - NCAT has its own rules. Despite that, the court/tribunal can often give leave to change the application of the rules where it considers it just to do so (i.e. 'if it would be unjust to refuse to hear it' as you've said) - this would appear to be Rule 41. That aside, the NCAT Rules relevantly state at Rule 25 (CIVIL AND ADMINISTRATIVE TRIBUNAL RULES 2014 - REG 25 External and internal appeals - in full, it's picked apart below and some comments and bolding added):

25 EXTERNAL AND INTERNAL APPEALS
(1) An external or internal appeal (including, where required, an application for leave to appeal) may be made by lodging a notice of appeal. [Lodging an appeal, as you've pointed out]

(2) The notice of appeal must be--
(a) in or to the effect of the approved form, and
(b) duly completed, and
(c) lodged at the Registry, and
(d) accompanied by the applicable fee (if any) for the appeal. [This roughly accords with my original post - right form, correctly filled out, fee paid... The really important bit here is 'lodged at the Registry' - not, 'lodged by posting'. This connotes that it must be received by the Registry to be lodged - not sent to the Registry.]

(4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged--
(c) in any other case--within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later). [Per the above comments about Rule 41.]

(4A) For the purposes of subrule (4), the day on which reasons are given is the day on which reasons are first given, whether orally or in writing. [This lines up with the 'plus 5 calendar days'. The time runs from when the reasons are given. Since NCAT mails them out, it would be unfair not to factor that time into the calculation as giving less than the statutory 28 days would be unfair to parties wishing to lodge an appeal.]

So, we can see that for an appeal to be considered lodged it must be 'lodged at the Registry'. Merely putting it in the post is not sufficient for it to be considered lodged.

 

[faustus]

in case anyone encounters a similar situation, i found the answer to my question. essentially the date you hand over a letter at the post office ("posting it") is the date that you have lodged it. according to NCAT Procedural Direction 1:

Definitions ​

lodge a document with the Tribunal
Deliver or send a document to the Tribunal in a way
which complies with the Act, the Rules and this
Procedural Direction.

further:

How may documents be lodged? ​

9. A document can be lodged with the Tribunal by:
(a) leaving it at a registry of the Tribunal;
(b) sending it by post to a registry of the Tribunal; and
(c) sending it by electronic means to the Tribunal if the Tribunal has made
electronic lodgment available for that type of document and in the type of
proceedings concerned.

Procedural Directions and Guidelines

List of all Procedural Directions and Guidelines published by NCAT.

www.ncat.nsw.gov.au

https://www.ncat.nsw.gov.au/content/dam/dcj/ctsd/ncat/documents/procedural-directions/ncat_pd1_service_and_giving_notice.pdf

*sigh* the amount of anxiety this caused.

 

[Docupedia]

Nope. You'll notice the heading for that is 'how' documents are lodged - not 'when'.

 

[faustus]

Nope. You'll notice the heading for that is 'how' documents are lodged - not 'when'.

Okay, let me try again, with reference to the correct section. Suppose you are required to lodge an application or an appeal within 28 days.

Introduction
1. When parties deliver or send documents to the Tribunal, this is called lodging
the documents with the Tribunal.

If I send a document within 28 days, then I have lodged that document within 28 days. Now, maybe they mean that if you lodge a document by sending it, it must arrive within 28 days. However, if this were the case, then they would not make a point of drawing a distinction between delivery and sending. It would be worded:

Introduction
1. When parties deliver or send documents to the Tribunal, this is called lodging
the documents with the Tribunal.

Such wording would accommodate the different modalities for lodgement, when their delivery times are not the same:

9. A document can be lodged with the Tribunal by:
(a) leaving it at a registry of the Tribunal;
(b) sending it by post to a registry of the Tribunal; and
(c) sending it by electronic means to the Tribunal if the Tribunal has made
electronic lodgment available for that type of document and in the type of
proceedings concerned.

Like so:

Method	Delivery
leaving it at a registry of the Tribunal	instant
sending it by post	usually 3 business days
sending it by electronic means	instant

Is the above reasoning more coherent?

---

Below is a histogram of all cases heard under Privacy and Personal Information Protection Act 1998 / Health Records and Information Privacy Act 2002 and the decision time. See the one on the far right? That's the decision I'm appealing. How funny would it be if they said "so very sorry, but rules are rules and everyone knows that lodged means delivered..."





I note that my grounds for appeal are very good: even if I did lodge my appeal out of time, there is simply no way that an extension would not be granted. After the hearing, both sides were asked to make further submissions on whether the significant delay in the decision had any influence on the expectation of the quality of the decision. The reason why we were asked to do that is because well... maybe the submissions by the other side put it best:

[criteria in s. 62(3) of the CAT Act about the minimum characteristics that the Tribunal's reasons must possess]

b) they should be read with a degree of generosity to the decision-maker
given the sheer volume of work undertaken by tribunals (such as, they
should be read fairly and as a whole, they ought not to be inspected with
a fine tooth-comb attuned to identifying error and there should be a
degree of tolerance for looseness in the language of the Tribunal);

 

[Docupedia]

I think your logic is skewed. The wording of Rules 17 and 23 for NCAT don’t support it, and it isn’t a sensible argument when every court and tribunal registry appears predicated on the basis of documents not being lodged until received in the proper form, with payment where applicable. By your logic, you could jam an incomplete document in the mail and it would be considered lodged - but the only person who has any idea it is ’lodged’ is you. The world doesn’t work that way.