What happens if you fail to lodge a Notice of Appeal outside the 28-day period?

You must request an extension of time under section 41 of the NSW Civil and Administrative Tribunal 2013 (NCAT).

In this instance you are the ‘Applicant’ and the NSW Firearms Registry representing the as the delegate for the Commissioner of Police (CoP) is the ‘Respondent.’

Section 41 states that:

(1)  The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2)  Such an application may be made even though the relevant period of time has expired.

The Application for Extension can either be dealt with ‘on the papers’ in which there is no hearing, or in a hearing.

Time Extension Principles

The principles were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18] to [22] (Jackson) and was most recently cited in the NSW Supreme Court (Court of Appeal) decision of EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167 (EFQ).

In both applications the extension of time sought to appeal a decision by the respective authorities was dismissed.

The case of Jackson

Briefly, Jackson involved a Residential Tenancies Act 2010 (NSW) dispute where the Consumer and Commercial Division of NCAT ordered the termination of the appellants (Jackson) residential tenancy agreement on the ground that Jackson had breached the agreement causing or permitting a nuisance and interference with the reasonable peace and comfort and privacy of the neighbours. 

In Jackson, Wright (President of NCAT) and Westgarth (Deputy President) stated that the decision to grant an extension of time is unfettered but it must be exercised judicially. It must also be exercised according to the resolution principles of being just, quick and cheap.  

A grant of an extension under the rule is not automatic. 

The purpose of the discretion is so the Court can administer justice between the parties. Justice is not determined on the fact there is a natural resource imbalance between the applicant being a privately funded and the State having millions of dollars to engage in litigation. 

The discretion can only be exercised in favour of an applicant if strict compliance with the rules will cause an injustice upon the applicant. 

The Tribunal in concluding there is an ‘injustice’ will depend on:

  • The history of the proceedings.
  • The conduct of the parties.
  • The nature of the litigation.
  • And the consequences for the parties in the grant or refusal of the application for an extension of time.
  • The prospects of the applicant succeeding in the appeal.
  • Whether the respondent has a ‘vested right to retain the judgment’. 

Therefore, for you, as an Applicant to succeed there must be material which the Tribunal can be satisfied there would be an injustice by refusing the application to grant a time extension to file an appeal.

The specification of a time limit is designed to promote the orderly and efficient conduct of proceedings, and providing certainty for the parties, especially the party that has been favoured by the decision through the lapse of the time limit and achieving finality in litigation. 

For these reasons, time limits are generally strictly enforced. However as discussed, the power under section 41 of the NCAT Act to grant extensions allows the Tribunal to prevent the rigid enforcement of time limits becoming an ‘instrument of injustice’.

The case in EFQ

Briefly, the applicant, EFQ sought leave to appeal a decision of the Occupational Division of the NCAT in which the Tribunal refused to grant EPQ an extension of time to appeal the decision of the Medical Council of NSW. 

The Medical Council had imposed a temporary condition on EFQ’s registration as a registered health practitioner, directing that EFQ not practise medicine.

In EFQ using the principles outlined in Jackson, the Tribunal identified the following matters relevant to the exercise of the extension discretion:

  • The length of the delay.
  • The reason for the delay.
  • Where the applicant had a fairly arguable case.
  • The extent of any prejudice suffered by the respondent to the application.

Bell P in the judgment also observed, referring to the case of Jackson by Hodgson JA in Tomko v Palasty (No.2) [2007] NSWCA 369 at [14] that:

“There may be a circumstance where it is appropriate to go further into the merits of the case of a pertson seeking [an extension] to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the [extension of time] show that [their] case has more substantial merit than merely being fairly arguable.”

Take Away

You must act.

As soon as you realise you have exceeded the 28-day period to lodge an appeal, you should first seek legal advice on the question of seeking an extension of time to file an appeal of the decision to revoke your firearms license by the Commissioner of Police. 

If that answer is ‘yes’, you should file a general application as soon as possible. 

The longer an applicant waits the less likely the delay will be seen to be reasonable and the greater the chance that the Tribunal will decide an injustice has been caused to the respondent party that is entitled to rely on a vested right to retain the judgement. 

In this circumstance you may need to demonstrate a additions reasons as to why you have ‘more than substantial merit’ than merely stating your case is one that is ‘fairly arguable’ (in the granting an extension of time) and outweighs the extent of prejudice or unfairness caused to the respondent party. 

What to do next?

Call Richard McDonald of McDonald Law on 02 8824 4736 or email us for an appointment at [email protected]. We will be able to assist you, provide you with honest and frank feedback, and give you practical options to plan, prepare and resolve your case.