Lee and Commissioner Of State Revenue
[2007] WASAT 271
•17 August 2007
LEE and COMMISSIONER OF STATE REVENUE [2007] WASAT 271
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 271 | |
| FIRST HOME OWNER GRANT ACT 2000 (WA) | |||
| Case No: | CC:908/2007 | 17 AUGUST 2007 | |
| Coram: | MR P McNAB (MEMBER) | 17/08/07 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | The application was dismissed | ||
| B | |||
| PDF Version |
| Parties: | VERNON LEE COMMISSIONER OF STATE REVENUE |
Catchwords: | Administrative law Statutory benefit or grant Applications and grants First home owner grant scheme Forms Time Limitation period for application for grant Application made out of time Applicant claiming that he was misled by Commissioner's material and forms Time limitation appearing in some of the Commissioner's consumer information material Commissioner conceding that applicant had no knowledge of time limitation Whether power to extend time under enabling Act Other provisions of Act permitted extension or early application Inference that extension not permitted Common law not favouring an implied power of extension where fixed period specified Strict compliance with time limit required No estoppel or analogous argument permitted to override time limitation in statute Interpretation Act provisions inapplicable or irrelevant Whether Tribunal lacked jurisdiction to deal with application Application for review dismissed affirming decision under review Recommendations made by Tribunal for improvement of Commissioner's consumer information material Possible role of Ombudsman or other agency in such circumstances where applicant inadvertently misled |
Legislation: | First Home Owner Grant Act 2000 (WA), s 15, s 15(5), s 15(6), s 28 First Home Owner Grant Amendment Act 2005 (WA), Pt 3 Interpretation Act 1984 (WA), s 48 National Health Act 1953 (Cth) |
Case References: | Australian Iron and Steel Ltd v Hoogland (1962) 108 CLR 471 Project Blue Sky Inc & Ors and the Australian Broadcasting Authority (1998) 194 CLR 355 Re Elmore Quest Pty Ltd (in liq) and Department of Health and Ageing (2006) 43 AAR 127 Rudolphy v Lightfoot (1999) 197 CLR 501 |
Orders | 1. The application is dismissed.,2. The decision under review is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : FIRST HOME OWNER GRANT ACT 2000 (WA) CITATION : LEE and COMMISSIONER OF STATE REVENUE [2007] WASAT 271 MEMBER : MR P McNAB (MEMBER) HEARD : 17 AUGUST 2007 DELIVERED : Edited reasons delivered extemporaneously on 17 AUGUST 2007 FILE NO/S : CC 908 of 2007 BETWEEN : VERNON LEE
- Applicant
AND
COMMISSIONER OF STATE REVENUE
Respondent
Catchwords:
Administrative law Statutory benefit or grant Applications and grants First home owner grant scheme Forms Time Limitation period for application for grant - Application made out of time - Applicant claiming that he was misled by Commissioner's material and forms - Time limitation appearing in some of the Commissioner's consumer information material - Commissioner conceding that applicant had no knowledge of time limitation - Whether power to extend time under enabling Act - Other provisions of Act permitted extension or early application - Inference that extension not permitted - Common law not favouring an implied power of extension where fixed period specified - Strict compliance with time limit required - No estoppel or analogous argument
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permitted to override time limitation in statute - Interpretation Act provisions inapplicable or irrelevant - Whether Tribunal lacked jurisdiction to deal with application - Application for review dismissed affirming decision under review - Recommendations made by Tribunal for improvement of Commissioner's consumer information material - Possible role of Ombudsman or other agency in such circumstances where applicant inadvertently misled
Legislation:
First Home Owner Grant Act 2000 (WA), s 15, s 15(5), s 15(6), s 28
First Home Owner Grant Amendment Act 2005 (WA), Pt 3
Interpretation Act 1984 (WA), s 48
National Health Act 1953 (Cth)
Result:
The application was dismissed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr PD Lochore
Solicitors:
Applicant : Self-represented
Respondent : State Solicitor
Case(s) referred to in decision(s):
Australian Iron and Steel Ltd v Hoogland (1962) 108 CLR 471
Project Blue Sky Inc & Ors and the Australian Broadcasting Authority (1998) 194 CLR 355
Re Elmore Quest Pty Ltd (in liq) and Department of Health and Ageing (2006) 43 AAR 127
Rudolphy v Lightfoot (1999) 197 CLR 501
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- </CRJ>
Summary of Tribunal's decision
1 This review dealt with an application made by Mr Vernon Lee for a first home owner grant.
2 Mr Lee lodged his application several months after the time specified in the legislation regulating the first home owner grant scheme. The respondent Commissioner, who administered the scheme, rejected the application because it was out of time.
3 The Commissioner accepted that Mr Lee had no specific knowledge of the limitation period but pointed out that there was some consumer information material published by the Commissioner indicating the time limit. In any event, the Commissioner contended in the Tribunal that he had no power to accept a late application. The Commissioner argued that the Tribunal had no jurisdiction to entertain the application.
4 The Tribunal agreed with the Commissioner that the time period could not be avoided. Neither the statutory scheme nor the general law nor any other Act of Parliament provided for the acceptance of an application made out of time. The fact that Mr Lee did not know of the time period or that he might have been inadvertently misled as to the existence of a specific time period which could not be extended was, in the circumstances, irrelevant.
5 The Tribunal followed a decision of its Commonwealth counterpart, the Administrative Appeals Tribunal, which covered similar ground to the issues raised in this review.
6 The application was dismissed but the Tribunal made some recommendations suggesting that the Commissioner's consumer information material be amended to more specifically alert applicants to the fixed time limit under the scheme.
7 The Tribunal heard the matter and then delivered its reasons for decision shortly after the conclusion of the hearing. What follows is an edited version of those reasons taken from the transcript of proceedings.
Introduction
8 This is an application brought by Mr Vernon Lee for a review of a decision by the respondent, the Commissioner of State Revenue (Commissioner), in relation to an application Mr Lee made seeking a first home owner grant under
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- s 15 of the First Home Owner Grant Act 2000 (WA) (FHOG Act). On 9 March 2007 the Commissioner refused the application on the basis that it was made out of time. Section 15(5) of the FHOG Act provides as follows (emphasis added):
"The application [for a grant] may only be made within a period -
(a) beginning on the commencement date of the eligible transaction to which the application relates; and
(b) ending 12 months after the completion of the eligible transaction to which the application relates."
10 The Commissioner is given, under s 15(6) of the FHOG Act, the power to allow an application to be made before the application period, but there is no express provision allowing an application after the application period. As we shall see, this is a matter relied upon by Mr Lochore, counsel for the respondent, as indicating that the Commissioner has no power to grant an application which is made out of time.
11 There is no dispute as to the material facts. The commencement date runs from the date of Mr Lee's settlement, which is agreed between the parties to be 26 October 2005. Therefore, under s 15, unless power can be found in the FHOG Act or in the general law to extend that period, or in another Act, the application period would seem to end 12 months after the commencement date; that is on 26 October 2006.
12 There is no dispute here that the application was made to the Commissioner on 9 March 2007. That is well outside the period specified in s 15 of the FHOG Act.
Applicant's case
13 Mr Lee submitted that he was in effect misled as to that fixed period, and he drew attention to the first home owner grant application form. That form, it is conceded quite properly by the respondent, taken alone and not in the
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- context of other information provided by the respondent, might suggest that there is no time limitation for an application.
14 In any event, the respondent has again quite properly conceded and accepted that the applicant in this particular case did not have any specific knowledge of the limitation period, and in particular it is conceded that when the applicant applied online that his attention was not drawn to item 45 of the "frequently asked questions" which clearly sets out the limitation period.
Respondent's case
15 The Commissioner's argument is essentially one of statutory interpretation, relying upon the express provisions of the FHOG Act and the absence of any provision in the legislation or any other Act allowing for an extension of time.
16 The Commissioner's counsel did not produce any authorities, instead relying on the clear words of the Act. There are, apparently, no cases interpreting this particular legislation; however, the Tribunal's own researches have produced some relevant authorities. One is Rudolphy v Lightfoot (1999) 197 CLR 501.
17 That case, amongst many that might be capable of being produced, suggests that where a rule as to time is clearly laid down in an act of Parliament, then at common law there cannot be an extension of that limitation. The Tribunal has had regard to the discussion of a unanimous High Court decision at 507 – 508. To adapt the words of Windeyer J from another case, Australian Iron and Steel Ltd v Hoogland (1962) 108 CLR 471, cited by their Honours:
"[This seems to be a case which] imposes a condition which is of the essence of a new right."
18 In this case, the "new right" would be the successful application for a grant under the Act. The condition is compliance with the time limit imposed on the application.
19 More relevantly, the Tribunal drew the parties' attention to ReElmore Quest Pty Ltd (in liq) and Department of Health and Ageing (2006) 43 AAR 127, which is a decision of the Commonwealth Administrative Appeals Tribunal (AAT). In that case, Deputy President Forgie had to consider whether the AAT had jurisdiction to review an application lodged out of time in respect of certain decisions made under the National Health Act 1953 (Cth).
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20 Deputy President Forgie determined that the Tribunal lacked jurisdiction to deal with the application because the relevant statutory provisions, which it is unnecessary to reproduce, did not, in effect, permit any extension of time by the relevant public officials empowered to consider applications under that Act.
21 The reasoning in Deputy President Forgie's discussion, at 138 - 141, was subsequently relied upon by Mr Lochore, as broadly applicable here. The Tribunal agrees with that submission by counsel.
22 Deputy President Forgie in that case, as this Tribunal has done (see above), drew attention to the general rule at common law, that where a time period is specified for which no extension mechanism is established, then in ordinary circumstances the court or tribunal must give effect to that limitation.
23 Deputy President Forgie discusses Project Blue Sky Inc & Ors and the Australian Broadcasting Authority (1998) 194 CLR 355, at 139, to the effect that there may, in some circumstances, be situations where one could read into legislation the possibility of receiving a late application by not reading the relevant Act as requiring strict compliance within a specified time period.
24 In Elmore Quest, Deputy President Forgie looked at the context of the relevant legislation in that case and noted that one express provision elsewhere permitted an extension of time, but that provision was not mirrored in the legislative provisions that the Act was concerned with.
25 In this matter we are faced with a similar scenario. Parliament has, as Mr Lochore drew the Tribunal's attention to, in s 15(6), specifically permitted the Commissioner to receive "early" applications. In s 28 of the FHOG Act, which was enacted at the same time as s 15, there is an express provision allowing the Commissioner to extend time on the receipt of an application by certain objectors.
26 Applying the reasoning of Deputy President Forgie in Elmore Quest and having regard to those statutory provisions, the Tribunal has come to the conclusion that there is no power to extend time. Further, it is not possible to read the Act as other than requiring that the time limitation period must be met.
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27 To the extent that there is a suggestion that the applicant in this case was misled - whatever label is applied to those circumstances - and to the extent that there could be arguably some restrictions imposed on the Commissioner because of those circumstances, there is a relevant discussion at 139 - 140 of Elmore Quest in the context of estoppel and similar arguments about representations (whether explicit or implicit), and whether these can "override" statutory provisions.
28 This Tribunal respectfully adopts the reasoning of Deputy President Forgie in Elmore Quest and concludes that whatever the alleged representations, misleading forms or other circumstances that have been suggested by the applicant, they cannot, however they are labelled, override the express provisions of the FHOG Act which do not, as we have seen, permit any extension of time.
29 Section 48 of the Interpretation Act 1984 (WA) provides that:
"Where a written law confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires."
30 At an earlier directions hearing in this matter, the Tribunal raised the question of whether that or any other provision of the Interpretation Act1984 (WA) would assist in the resolution of this case. In Elmore Quest, Deputy President Forgie referred to the statutory equivalent in the Commonwealth (at 140), and concluded that by looking at the principal Act, it seemed to her that for most purposes, Parliament intended the relevant officials there to exercise the power once, and once only. (That was in the context of the setting of a scale of fees under complex Commonwealth legislation.)
31 Deputy President Forgie went on to say:
"The very fact that the [principal] Act does not allow for the extension of the 28 day time period within which review may be sought supports my conclusion that the power given to the Secretary [of the Department by the Act] is intended to be exercised only once."
32 In this matter, although there is no direct parallel, in the Tribunal's view s 48 does not assist the applicant; that is, if it has any application at all it would not "extend" in the applicant's favour the duty or power to deal with the application (other than perhaps to refuse it) being a decision made by the respondent in the exercise of its powers under s 15 of the Act.
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Conclusions
33 In these circumstances there is nothing in the evidence or the arguments put forward by the applicant which can lead to a decision in his favour, and therefore, for the reasons already given, the Tribunal must dismiss the application for review.
34 On the question of whether it is necessary for the Tribunal to dismiss the application because it lacks jurisdiction to do otherwise because there is no reviewable decision (as the application was made out of time), it is strictly unnecessary to discuss that in light of the decision that the Tribunal has made and it can be reserved for further consideration to another day.
35 However, the Tribunal should indicate that here, where there was a decision in fact rejecting the application as being out of time, and that decision was sought to be reviewed, that there may well be a reviewable decision that would give the Tribunal jurisdiction. But cf the order of the AAT in Elmore Quest.
36 In any event, for the reasons already advanced, there is no prospect of success, and whether it is described as a decision which says that this Tribunal has no jurisdiction in the matter or a decision which says that the correct and preferable decision is to affirm the decision under review, the same practical result is reached.
Recommendations
37 Before concluding, the Tribunal should note some additional matters about what happened to Mr Lee in this case. It seems to the Tribunal that Mr Lee has a point for at least some consideration of his particular circumstances where he, in good faith, made an application, having been in effect inadvertently misled by certain forms and the presentation of certain information or material on the Commissioner's website. There is no doubt that the aim of better public administration would be furthered by the Commissioner taking steps to correct such pamphlets, forms and other materials so that an applicant in the position of Mr Lee is not placed in the position of losing their grant through being inadvertently misled in circumstances such as these.
38 The Tribunal does not wish to suggest that there was any deliberate conduct on the part of anyone in the department to mislead persons who
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- might rely solely on the first home owner grant form, because it is clear that in other material the limitation period has been made quite clear. However, that form clearly needs to be amended, and the Tribunal respectfully recommends this to the respondent Commissioner. The Tribunal understands that the Commissioner is reviewing such material.
39 Mr Lee might have other avenues of complaint beyond the jurisdiction of this Tribunal. He might, for example, have a case to put to the Ombudsman or some other agency to have these matters looked at and some recommendation made in his favour.
40 Nothing the Tribunal can say can necessarily persuade the Ombudsman or the government to a particular course, because the Tribunal can only recommend certain courses, but Mr Lee is entitled to pursue, at least with the Ombudsman and other relevant agencies (such as a Member of Parliament or a Minister), some sort of redress for the time that he has spent in raising a valid point, even though it does not leave him with any legal redress.
41 These are matters, however, for Mr Lee to pursue and are not matters that the Tribunal can make determinations on.
Orders
42 For the reasons given above the Tribunal makes the following orders:
1. The application is dismissed.
2. The decision under review is affirmed.
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
2