Laffer and Secretary, Attorney-General's Department
[2013] AATA 585
•20 August 2013
[2013] AATA 585
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/1759
Re
Richard Laffer
APPLICANT
And
Secretary, Attorney-General's Department
RESPONDENT
WRITTEN REASONS FOR ORAL DECISION
Tribunal The Hon R J Groom AO (Deputy President)
Date 20 August 2013 Place Hobart The Tribunal decides that the applicant did lodge his application for a review of the Social Security Appeals Tribunal decision within the 28 day time limit period provided in section 29(2) of the Administrative Appeals Tribunal Act 1975.
[Sgd Hon R J Groom]
Deputy President
PRACTICE AND PROCEDURE - application for a review of decision of Social Security Appeals Tribunal – whether application lodged within 28 days – whether 28 day period is reckoned exclusive of day decision furnished to applicant – meaning of “day” – application lodged electronically at 6.29 pm on 28th day – application lodged within 28 days
Administrative Appeals Tribunal Act 1975, s 29(2), (7)
Acts Interpretation Act 1901, s 36(1) Item 6
Federal Court Rules 2011, s 2.25(3)
Secretary, Department of Social Security and Mellidis (1990) 21 ALD 549
WRITTEN REASONS FOR ORAL DECISION
The Hon R J Groom AO (Deputy President)
This is an application by Mr Laffer under section 29(7) of the Administrative Appeals Tribunal Act 1975 to extend the time limit provided in section 29(2) of the Act for lodging an application for a review of a decision of the Social Security Appeals Tribunal made on 15 March 2013.
The application to extend time was made following written advice given to Mr Laffer by the Tribunal’s Hobart Registry that his review application had not been lodged within the 28 day time limit. The respondent’s solicitor informed the Registry that in the circumstances the granting of any extension of time would be opposed.
During the initial hearing of the extension of time application on 5 July 2013 it became apparent that Mr Laffer may well have lodged his review application within the 28 day period.
The relevant facts are not in dispute in these proceedings. I find as follows:
(a)The reviewable decision of the Social Security Appeals Tribunal was made on 15 March 2013.
(b)Mr Laffer received the Tribunal’s decision including the reasons for decision on 18 March 2013.
(c)He then lodged an application for review of the decision with this Tribunal electronically on 15 April 2013.
(d)The electronic record establishes that the application was lodged at 6.29 pm on that date.
(e)The 28 day period in section 29(2)(a) of the Administrative Appeals Tribunal Act 1975 expired on that same day, namely 15 April 2013. In calculating the 28 day period the day on which the decision of the Social Security Appeals Tribunal was furnished to the applicant is excluded. (See section 36(1) Item 6 of the Acts Interpretation Act 1901 and Secretary, Department of Social Security and Mellidis (1990) 21 ALD 549).
(f)The 28 day period therefore commenced on 19 March 2013 and concluded on 15 April 2013.
The critical question is at what precise time on 15 April 2013 did the 28 day limitation period expire. Although the word “day” can have different meanings in various circumstances and contexts the generally accepted ordinary meaning of the word is the period of time which begins with one midnight and ends with the next. (See Butterworths Words and Phrases Legally Defined 3rd Edition page 16 and 45 Hallsburys Laws 4th Edition paragraph 1,113).
“Day” is not defined in the Administrative Appeals Tribunal Act 1975 nor in the Acts Interpretation Act 1901. If the 28 day period was intended to conclude at the close of business or at a specified time on the 28th day it would appear necessary for the Act, or perhaps the Regulations, to so provide. They do not.
It is of interest to note that Rule 2.25(3) of the Federal Court Rules 2011 provides that if a document is sent by fax or electronic communication it must be received by “4.30 pm on a business day for the Registry” if it is to be taken to have been filed on that day. If it is received after that time it is taken to be filed on the “next business day for the Registry”.
Mr Sparkes for the respondent, at the Tribunal’s request, has filed a brief written submission on the issue. In that submission Mr Sparkes agrees that in the circumstances the application should be regarded as having been lodged within time although he states, quite properly, that it is a matter for the Tribunal to determine.
Having considered the facts of the application the Tribunal concludes that Mr Laffer did lodge his application for a review of the Social Security Appeals Tribunal decision within the 28 day time limit period provided in section 29(2) of the Administrative Appeals Tribunal Act 1975.
As the facts are not in dispute and the legal issues involved are not complex it should be possible for the substantive application to be heard and concluded at an early date. The Tribunal Registry will consult with the parties to arrange a suitable hearing date.
I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President) [Sgd]
Administrative Assistant
Dated : 20 August 2013
Date(s) of hearing 20 August 2013 Applicant In person Solicitors for the Respondent Mr B Sparkes, Program Litigation and Review Branch
1
0
1