Brooks-Maher v Cheung

[2000] NSWADT 57

Set aside by Appeal: Set aside by appeal 16 November 2000
Cheung v The Administrative Decisions Tribunal of New South Wales [2000] NSWSC 1062

CITATION:	Brooks-Maher -v- Cheung [2000] NSWADT 57
DIVISION:	General Division
PARTIES:	APPLICANT Emma Brooks-Maher RESPONDENT Kwai Lin (Karin) Cheung
FILE NUMBER:	993289
HEARING DATES:	09/05/00
SUBMISSIONS CLOSED:	05/09/2000
DATE OF DECISION:	05/17/2000
BEFORE:	Hennessy N (Deputy President); Britton A - Judicial Member; Mapperson K - Member
APPLICATION:	Dismissal from civic office - Local Government Act - dismissal from civic office
MATTER FOR DECISION:	Application for original application to be dismissed because it was lodged out of time
LEGISLATION CITED:	Local Government Act 1993
CASES CITED:	Lucas -v- Pascale NSWADT 23 Ex Parte Hinds; Re Penboss [1972] NSWLR 542 Cameron -v- Fysh (1904) CLR 312 Re Berrill and the Poll for the Electorate of Boothby (1978) 19 ALR 254
REPRESENTATION:	APPLICANT P Griffin, barrister RESPONDENT C Birch SC, barrister
ORDERS:	1. Pursuant to s 44 of the Administrative Decisions Act 1997, the Tribunal orders that the time for the making of the application is extended to 24 December 1999.

Introduction

1 This decision concerns an application by the respondent, Ms Cheung, to have the original application filed by Ms Brooks-Maher dismissed because it was lodged out of time. Ms Brooks-Maher was represented by Mr Griffin of counsel, instructed by the Public Interest Advocacy Centre and Ms Cheung was represented by Mr Birch instructed by Ms Tancred of Pigott Stinson Ratner Thom.

2 Ms Brooks-Maher’s original application, brought under s 329 of the Local Government Act 1993 (LGA), was for Ms Cheung to be dismissed as a councillor to Ashfield Municipal Council. The basis for the application was an alleged irregularity in the manner in which she was elected.

3 Section 329(3) of the LGA provides that:

(3) Proceedings based on the ground that there has been an irregularity in the manner in which a person has been elected or appointed to civic office may not be commenced more than 3 months after the date of the person's election or appointment to that office.

4 The election took place on 11 September 1999 and the poll was declared on 17 September 1999.

Issues

5 The issues can be summarised as follows:

• from what date does the time run?
• on what date was the application lodged?
• was the application lodged more than 3 months after the date of the person's election or appointment to office?
• if so, does the Tribunal have a discretion to accept the complaint out of time?
• if so, should the Tribunal accept the application out of time?

From what date does the time run

6 There was no issue that the principal proceedings were based on the ground that there has been an irregularity in the manner in which a person has been elected. There was also no issue that “the date of the person’s election” is the date that the poll was declared, namely 17 September 1999.(See Lucas v Pascale NSWADT 23 and Ex Parte Hinds; Re Penboss [1972] NSWLR 542.)

On what date was the application lodged?

7 Mr Griffin on behalf of Ms Brooks-Maher submitted that the proceedings were commenced on 16 December 1999 and were within time. Mr Birch on behalf of Ms Cheung submitted that the proceedings were commenced on 24 December 1999 and were not within time.

8 The evidence on this issue, which was not disputed, was that Ms Brooks-Maher sent an “Application Under s 329 of the Local Government Act”, duly signed, to the Tribunal by facsimile on 16 December 1999. Ms Brooks-Maher alleges that she was not advised by staff at the Registry that a fee was payable at that time. After receiving a telephone message from the Registry, she rang back on 20 December 1999 and was told that a fee of $50.00 was payable. Ms Brooks-Maher paid the fee and lodged the original of the application on 24 December 1999. At the same time she wrote a letter explaining the circumstances surrounding the lodgement of the application.

9 There are several provisions of the Administrative Decisions Tribunal Act 1997 (ADT Act) and Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 (the Transitional Regulation) which are relevant to the question of when the proceedings were commenced. Section 42(b) of the ADT Act states that:

A person may apply to the Tribunal for an original decision if:

(b) the application is made in the manner and within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made).

10 Rule 14(1) of the Transitional Regulation prescribes the manner by which a person may apply to the Tribunal for an original decision. It states that:

For the purposes of section 42(b) of the Act, an application to the Tribunal for an original decision must:
(a) be in or to the effect of the approved form, and
(b) be duly completed, and
(c) be lodged at the Registry, and
(d) be accompanied by the applicable fee (if any) for the application.

11 There was no issue that the application in this case complied with paragraphs (a) and (b) of Rule 14(1). But Mr Birch, on behalf of the respondent, submitted that neither paragraphs (c) nor (d) had been complied with on 16 December 1999.

12 Dealing first with the requirement that the application be lodged at the Registry, Mr Birch submitted that lodgement by facsimile did not comply with this requirement. He sought some assistance from the wording of section 138(2) of the ADT Act which states that:

A notice or other document may be served on the Tribunal by leaving it at, or by sending it by post to (or a document that is required or permitted to be lodged with the Tribunal may be lodged at):

(a) the office of the Registrar, or
(b) if the Registrar has more than one office, any one of those offices.

13 The words in brackets relate to an application. Applications must be lodged at the office of the Registrar. (There is only one such office.) Documents which must be served on the Tribunal fall into a different category. Consequently s 138 does not offer any guidance as to the manner in which an application must be lodged except to say that it may be lodged at the office of the Registrar.

14 There are no provisions or rules in the ADT Act or Transitional Regulation which set out the manner in which an application must be lodged with the Registrar. Mr Birch submitted that because there were no provisions allowing lodgement by facsimile, that mode of lodgement did not comply with the ADT Act. Mr Griffin submitted that because there were no provisions preventing lodgement by facsimile that mode of lodgement does comply with the ADT Act.

15 Mr Birch pointed to perceived dangers to the authenticity of an application if facsimiles were to be accepted by the Registry. He maintained that since a facsimile was merely a copy of a document and not the document itself, the Tribunal would be sacrificing protections that a requirement for an original document and signature would provide.

16 Mr Griffin submitted that authenticity of documents and signatures may be an issue even when originals are required. In his experience, facsimiles are routinely accepted by certain courts and Tribunals in this State even where an original is ultimately required.

17 Given that there is nothing in the provisions of the ADT Act or the Transitional Regulation specifying the manner in which an application must be lodged, and nothing to prevent lodgement by facsimile, we find that an application may be lodged at the Registry by facsimile. The practices and rules of other Courts and Tribunals are not determinative of this issue. This conclusion is also consistent with the provisions of s 73(3) of the ADT Act which state that:

The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

18 The other requirement set out in Rule 14(1) which is in dispute is that the application must be accompanied by the applicable fee (if any) for the application. Mr Birch submitted that because the fee was not paid until 24 December, proceedings were not commenced until that day. Mr Griffin maintained that proceedings were commenced on 16 December 1999 and that “accompanied” does not mean submitted at the same time.

19 Section 43 of the ADT Act states that:

(1) An application to the Tribunal cannot be made unless the fee prescribed by the regulations (if any) in respect of the application is paid.

(2) An application in respect of which a fee is waived under the regulations (whether at the time of lodgment or otherwise) is taken to be made at the time the application is lodged with the Tribunal.

20 Clause 5A of the Administrative Decisions Tribunal (General) Amendment (Fees) Regulation 1999 (the Fees Regulation), which commenced on 1 February 1999, states that:

For the purposes of section 43(1) of the Act, the fee prescribed in respect of an original application is:

(a) if the Act or any other law requires the application to be determined by the Triubnal constituted by 2 or more members - $100, or
(b) in any other case - $50

21 Despite a submission by Mr Griffin that the fee was temporarily waived in this case because of the alleged initial failure of the Registry staff to advise Ms Brooks-Maher of the fee, there is no evidence that any application for waiver of the fee was made. We find that the fee was not waived in this case.

22 In our view, section 43(1) of the ADT Act and Clause 5A of the Fees Regulation make it clear that a proceedings cannot be commenced by an application until the prescribed fee is paid. An application can be lodged without the fee but proceedings will not be commenced until the fee is paid.

23 This case is further complicated by the fact that a fee of $50.00 was charged rather than the prescribed fee in these kinds of cases of $100.00. This appears to have been a result of an oversight on the part of the Registrar. However, relying on the provisions of s 73(3) of the ADT Act, we find that the “prescribed” fee has been paid.

24 Consequently we find that Ms Brooks-Maher commenced proceedings in this matter on 24 December 1999. This is more than 3 months after the date of the respondent’s election to office on 17 September. Consequently the application is out of time.

Does the Tribunal have a discretion to accept the complaint out of time?

25 Mr Birch for the respondent submitted that the Tribunal has no discretion to accept this matter out of time and that the application should be dismissed. Mr Griffin for the applicant submitted that if the application has not been lodged within time, the Tribunal may accept it out of time and that we should exercise our discretion to do so.

26 Section 42(b) of the ADT Act, which is set out above at paragraph 9, allows a person to apply to the Tribunal for an original decision if the application is made within the time prescribed by the rules of the Tribunal or prescribed by or under the enactment under which the application is made. In this case the LGA is the relevant enactment and s 329(3) prescribes that an application may not be commenced more than 3 months after the date of the person's election to office.

27 Section 44(1) of the ADT Act allows the Tribunal to extend the time for the making of an application in certain circumstances. That section states that:

(1) Despite section 42 (b), the Tribunal may, on application in writing by an interested person seeking to make a late application, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application.

(2) The time for making an application for an original decision may be extended under subsection (1) although that time has expired.

(3) In this section, late application means an application not made within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made).

28 In the respondent’s submission the “apparent” discretion conferred by s 44 must be read subject to the provisions in s 40 of the Act. That section states that:

(1) The provisions of this Act have effect subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly).

(2) However, a provision of a relevant enactment is not to be interpreted as amending or repealing, or otherwise altering or affecting the effect or operation of, any of the provisions of this Chapter unless the provision of the relevant enactment provides expressly for it to have effect despite a specified provision, or despite any provision, of this Chapter.

29 It was common ground that s 44(2) does not apply to this case as it only applies to the provisions of Chapter 3 of the ADT Act and does not therefore apply to the discretion conferred in s 44 which is contained in Chapter 4.

30 Mr Birch’s argument was that s 329(3) is a “contrary” provision pursuant to s 44(1) because it is a mandatory requirement that proceedings not be commenced more than 3 months after the date of the person's election. In his view it is therefore “contrary” to s 44(1) of the ADT Act which allows for an extension of time.

31 Mr Griffin submitted that it was not a mandatory requirement because of the use of the word “may” in the provision. He relied on section 9(1) and (2) of the Interpretation Act 1987 to support this proposition. We do not accept that s 329(3) of the LGA itself provides the Tribunal with a discretion to extend the period for commencing proceedings. The plain meaning of that provision, read alone, is that it is a mandatory requirement to commence proceedings within the time specified.

32 Mr Birch relied on several cases to support his proposition that s 329(3) of the LGA provides a mandatory time limit. (See Cameron v Fysh (1904) CLR 312 at 316; Re Berrill and the Poll for the Electorate of Boothby (1978) 19 ALR 254 at 255; Ex parte Hinds: Re Penboss [1972] 2 NSWLR 542.) Mr Birch conceded that these cases were decided pursuant to different legislative provisions but he emphasised the policy basis for a strict construction of the time periods which is to provide certainty that those elected to office will not be challenged after a specified period.

33 While we agree that similar provisions have been interpreted strictly in the cases cited and that there is a justifiable policy basis for such an interpretation, our task is to interpret and apply the legislative scheme in the LGA and the ADT Act. In our view, the submission that s 329(3) of the LGA is an express or implied “contrary provision” to the provisions of the ADT Act must be rejected for the following reasons.

34 Section 42(b) of the ADT Act specifies that an application to the Tribunal must be made within the time prescribed by provisions such as 329(3) of the LGA. Consequently s 329(3) of the LGA is not expressly or impliedly contrary to s 42(b) of the ADT Act. Section 44(1) states that despite section 42(b), the Tribunal may extend the time for the making of an application in certain circumstances. In other words, even where a time limit is prescribed under an enactment such as the LGA, the Tribunal has power to extend that time limit. We can find nothing in s 329(3) which is either expressly or impliedly contrary to this provision. Section 44(1) contemplates that provisions such as 329(3) exist and makes provision for the Tribunal to extend the time despite the existence of such a provision. Mr Birch’s submission would mean that s 44(1) of the ADT Act would be redundant where mandatory time limits were prescribed in relevant enactments. This could not have been parliament’s intention.

35 Consequently the Tribunal has the power under s 44(1) of the ADT Act to extend the time for the making of an application under s 329(3) of the LGA. This discretion may be exercised “if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application.”

Should the Tribunal accept the complaint out of time?

36 This application was made 8 days late. The reasons for the delay are set out Ms Brooks-Maher’s letter to the Tribunal dated 20 December 1999. In particular, she alleges that she was not advised of the requirement for a fee until after she sent the application by facsimile. She lodged the fee very soon after she received this advice. The reason she waited until the last minute to lodge the application was expressed as follows:

I delayed submitting the Application until the latest possible moment, hoping against hope that the situation would be clarified one way or another. However, nothing has occurred to allay my grave concerns, and even though it would be far easier to turn a blind eye, as a Councillor I cannot in conscience do so.

37 Based on all the evidence, we are of the opinion that Ms Brooks-Maher has provided a reasonable explanation for the delay in making the application and we extend the time limit for commencing proceedings to 24 December 1999.