Wong and Minister for Health
[2017] AATA 2296
•21 November 2017
Wong and Minister for Health [2017] AATA 2296 (21 November 2017)
Division:General Division
File Number(s): 2017/6679
Re:Zee Wan Wong
APPLICANT
AndMinister for Health
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:21 November 2017
Place:Melbourne
The Tribunal decides that:
the application has been lodged within the prescribed time in accordance with s 29 of the Administrative Appeals Tribunal Act 1975.
.......[sgd].............................................................
Deputy President S A Forgie
Catchwords
PROCEDURE – whether application for review within time – prescribed time for lodgement ended on a State public holiday – lodged electronically to national email address on following day – time of receipt – taken to have been lodged at place of business (Registry) which has the closest relationship with underlying transaction – prescribed time calculated by reference to the time where the Melbourne Registry is located – lodgement permitted on day following public holiday – application within time
Legislation
Acts Interpretation Act 1901 ss 1A, 36, 37
Administrative Appeals Tribunal Act 1975 ss 18B, 28, 29, 29B, 34D, 34J, 35, 35AA, 36, 36B, 37, 38AA, 38A, 39B, 42A, 42C, 64, 68, 68A
Electronic Transactions Act 1999 ss 5, 9, 14, 14B
Evidence Act 1995
Health Insurance Act 1973
Public Holidays Act 1973 (Vic) ss 6, 8
Administrative Appeal Tribunal Regulation 2015 s 16
Cases
Angus Fire Armour v Collector of Customs [1988] FCA 339; (1988) 9 AAR 421
Secondary Materials
Shorter Oxford English Dictionary, Fifth edition, 2002, Oxford University Press
REASONS FOR DECISION
Deputy President SA Forgie
A preliminary question has arisen as to whether Dr Zee Wan Wong lodged her application for review of a decision made by a delegate of the Minister for Health (Minister) under the Health Insurance Act 1973 (HIA) within time when she lodged it in the Tribunal by email addressed to [email protected] on 8 November 2017. As s 29 of the Administrative Appeals Tribunal Act 1975 (AAT Act) has not been displaced by the HIA Act, she was required to lodge her application with the Tribunal in the “prescribed time” as provided for in that section. In her case, the prescribed time commenced on 10 October 2017 when the Minister made the decision and ended on the 28th day after she was given a document setting out its terms. That is to say, it began on 11 October 2017 when she received notice of the decision by email and ended on Tuesday, 7 November 2017. The first Tuesday in November is Melbourne Cup Day and a public holiday in Melbourne as well as in Victoria generally.[1] The Tribunal’s Melbourne Registry was closed as a consequence but, as Melbourne Cup Day was not a public holiday elsewhere in Australia, the Tribunal’s other Registries were open on 7 November 2017. Lodgement by email was available at all times throughout the country.
[1] Public Holidays Act 1973 (Vic); s 6(j) and s 8
On Dr Wong’s behalf, Ms Ararat submitted that the application was within time and has asked for a written ruling. I have had regard to the AAT Act, the Acts Interpretation Act 1901 (AI Act) and the Electronic Transactions Act 1999 (ET Act) and the Evidence Act 1995 (Evidence Act) in deciding that it is within time. My reasons follow.
REASONS
How an application to the Tribunal is made
Section 29(1) of the AAT Act sets how an application must be made. For the purposes of this case, only the following paragraphs of s 29(1) are relevant:
“An application to the Tribunal for review of a decision:
(a)must be made:
(i)in writing; or
(ii)if the decision is reviewable in the Social Services and Child Support Division – in writing or by making an oral application in person at, or by telephone to, a Registry of the Tribunal; and
…
(b)must be accompanied by any prescribed fee; and
(c)…
(ca)…
(cb)…
(d)if the terms of the decision were recorded in writing and set out in a document that was given to the applicant or the decision is deemed to be made by reason of the operation of subsection 25(5) of (5A) – shall be lodged with the Tribunal within the prescribed time.”
…
The prescribed time
The “prescribed time” in the circumstances of this case is determined by reference to s 29(2)(a) of the AAT Act as Dr Wong was given a written document setting out the terms of the decision and findings on material questions of fact. Section 29(2)(a) provides:
“Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:
(a)if the decision sets out the findings on material questions of fact and the reasons for the decision – the day on which a document setting out the terms of the decision is given to the applicant”.
The AI Act is “… like a dictionary and manual to use when reading and interpreting Commonwealth Acts and instruments made under Commonwealth Acts.”[2] Part 8 is concerned with the calculation of time. I will begin with Items 4 and 6 of s 36(1) of Part 8. They explain how a period of time is to be calculated when it is expressed in the terms used in s 29(2)(a):
“A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:
[2] AI Act; s 1A
Calculating periods of time
Item
Column 1
If the period of time:Column 2
then the period of time:1-3
…
…
4
is expressed to end at, on or with a specified day
includes that day.
5
…
…
6
is expressed to begin from a specified day
does not include that day.
7
…
…
Applying Items 4 and 6 to the time specified in s 29(2)(a), the 28 day period began on 11 October 2017, which was the day after she received the written notice of the decision and findings of relevant fact, and ended on 7 November 2017 being the 28th day after the day she received the notice.
The last day of the prescribed time for lodgement of the application was 7 November 2017, which was a public holiday in Victoria. Section 36(2) of the AI Act makes provision for a situation of that sort:
“If:
(a)an Act requires or allows a thing to be done; and
(b)the last day for doing the thing is a Saturday, a Sunday or a holiday;
then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.
Example:If a person has until 31 March to make an application and 31 March is a Saturday, the application may be made on Monday 2 April.”
In s 36(3), the word:
“holiday, in relation to the time for doing a thing, means:
(a)a day that is a public holiday in the place in which the thing is to be or may be done; and
(b)if the thing is to be or may be done at a particular office or other place – a day on which the place or office is closed for the whole day.”
Unless specifically stated to the contrary, a reference in an Act to time is deemed in each State or part of the Commonwealth to be a reference to the legal time in that State or part of the Commonwealth.[3]
[3] AI Act; s 37
The general provisions of the AI Act are not displaced by those of the AAT Act. Section 68A of the AAT Act is concerned with the calculation of time but only with periods of time less than seven days and only in the Tribunal’s Divisions other than the Migration Review Division.[4] Section 68A(1) provides:
“If the period of time for doing anything under this Act or any other Act, or in accordance with a direction of the Tribunal is a period of less than 7 days, any day on which the Registry of the Tribunal in which the relevant application was lodged is not open to the public is not to be counted in working out whether the period has ended.”
How is an application lodged?
[4] AAT Act; s 68A(2)
A. Provisions of the AAT Act and AAT Regulation relating to lodgement,
As well as s 29(1)(d), other provisions of the AAT Act require or permit material to be lodged. Among them are ss 28(3A), 29(4), 37(1), 38AA, 29, 29B, 34D(1)(b), 34D(4), 34J, 35(4) and (5), 35AA(2)(c), 36(2), 36B(2), 37, 38, 38AA, 38A, 39B, 42A(1A), 42C, 68 and 68A.
Subject to any specific requirement in another enactment,[5] s 68(1) provides that:
“A document or thing that is required or permitted by this Act or another enactment to be lodged with, or given to, the Tribunal must be lodged or given in accordance with:
(a)any direction under section 18B; or
(b)regulations made under this Act or the other enactment.”
[5] AAT Act; s 68(3)
Section 18B gives the President power to give written directions on a wide range of matters. Among them are matters that are related to lodgement of documents under ss 37 and 38AA of the AAT Act[6] but they are not relevant matters in this context. The General Practice Direction given by the previous President on 30 June 2015 under s 18B refers to lodgement of documents but does not make any reference to how that is to be done. The Administrative Appeal Tribunal Regulation 2015 (AAT Regulation) dated 25 June 2015 sets out the requirements for an applicant and other parties to give the Tribunal an address for service.[7] As required by s 68(2) of the AAT Act, s 17 prescribes the manner in which a document is to be given to a person for the purposes of a proceeding before the Tribunal. It covers a range of methods by which a document may be given. Section 18 deems the time at which a document has been given when it is sent by means of an electronic communication specified in s 17(3)(c). Regulation 17 is not concerned with lodgement in the Tribunal.
[6] AAT Act; s 18B(4)
[7] AAT Regulation; s 16
There is nothing in the AAT Act that states what it means to “lodge” a document, be it an application or otherwise, in the Tribunal. The word is used in the sense of to “Deposit in court or with an official a formal statement (of complaint, objection etc.); …”.[8] This meaning is consistent with that given to it by Northrop J in Angus Fire Armour v Collector of Customs:[9]
“… Once an application has been lodged with the Tribunal in the sense that it has been received by an officer of a Registry, officers are required to determine whether the application is in the prescribed form and whether a fee is to be paid.”[10]
[8] Shorter Oxford English Dictionary, Fifth edition, 2002, Oxford University Press
[9] [1988] FCA 339; (1988) 9 AAR 421; Sweeney and Northrop JJ, Jenkinson J dissenting
[10] [1988] FCA 339; (1988) 9 AAR 421 at 433
It seems to me that this is the sense in which the word “lodge” must still be understood. It certainly does not mean to “file” for that is the task of the Tribunal’s Registry officers. It cannot mean “made” for s 29(1) sets out the six criteria that it must meet and one of those – lodgement within the prescribed time – is one of them.
B. Electronic Transactions Act 1999
Section 9(2)(a) of the Electronic Transactions Act 1999 (ET Act) provides:
“If, under a law of the Commonwealth, a person is permitted to give information in writing, the person may give the information by means of an electronic communication, where:
(a)in all cases – at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; …”
The expression “electronic communication” means:
“(a) a communication of information in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or
(b)a communication of information in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.”[11]
[11] EC Act; s 5(1)
Section 9(2)(a) applies to a requirement or permission to “give information” whether the expression “give, send or serve, or any other expression, is used”.[12] The word “lodge” would be captured within the catch-all phrase but s 9(5)(a) makes it clear that the expression “giving information” includes, among other meanings, “making an application”. As one of the necessary steps in making an application under s 29(1) of the AAT Act is to lodge an application, it follows that the ET Act applies to the lodgement that is required as part of making an application in the Tribunal.
[12] EC Act; s 9(4)
As lodgement of an application concerns receipt of that application, s 14A is relevant in determining the time of receipt or lodgement of an electronic communication. Only s 14A(1)(a) has relevance in this case:
“For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:
(a)the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee”.
For the purposes of determining when the electronic communication becomes capable of being retrieved for the purposes of s 14(1), regard must be had to s 14(2). Again subject to a contrary agreement between the originator and the addressee of the electronic communication, “… it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.”
Section 14B(1) is relevant in determining the place of dispatch and the place of receipt of an electronic communication. For the purposes of a law of the Commonwealth and unless otherwise agreed between the originator and addressee of an electronic communication:
“(a) the electronic communication is taken to have been dispatched at the place where the originator has its place of business; and
(b)the electronic communication is taken to have been received at the place where the addressee has its place of business.”
The expression “place of business” is defined in s 5(1) to mean:
“(a) in relation to a person, other than an entity referred to in paragraph (b) – a place where the person maintains a non-transitory establishment to pursue an economic activity other than the temporary provision of goods or services out of a specific location; or
(b)in relation to a government, an authority of a government or a non-profit body – a place where any operations or activities are carried out by that government, authority or body.”
Sections 14B(2), (3) and (4) are relevant in determining where a person’s place of business is. The Tribunal has a Registry in each State and another in the Australian Capital Territory[13] together with a Principal Registry. The Registry located in each State or Territory is the Tribunal’s public face in that State or Territory. Their establishment is provided for in s 64 of the AAT Act and their existence is recognised in the AAT Act in ss 29(1)(a)(ii), 40A(3) and 68A(1). The Tribunal’s website – – sets out the addresses of each of those Registries. Each Registry is a place at which the Tribunal carries out its “… operations or activities …” within the meaning of paragraph (b) of the definition of “place of business”.
[13] The Registry of the Supreme Court of Norfolk Island provides the Tribunal’s presence in that location.
As the Tribunal has multiple places of business for the purpose of the ET Act, s 14B(2)(c) is the relevant provision to work out the Registry at which the electronic communication is taken to have been received. Section 14B(2)(c) provides:
“For the purposes of the application of subsection (1) to an electronic communication:
(a)-(b) …
(c)if the party has not indicated a place of business and has more than one place of business, the place of business is that which has the closest relationship to the underlying transaction, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the transaction; …
(d)-(e)…”
In practical terms, this places a person who lodges an application by email in the same position as a person who does so by physically taking it to the Tribunal’s Registry closest to that person’s home or place of business.
Was Dr Wong’s application lodged in the prescribed time?
Given the availability of lodgement by email and online as well as by mail and in person, Dr Wong could have lodged her application for review on or before 7 November 2017 despite the fact that the Tribunal’s Melbourne Registry was closed on that day for Melbourne Cup Day. She would have been clearly within the prescribed time and there would have never been a question that she might need to extend time. That is by way of background only, for I must decide the issue on what was actually done.
When I do that, I conclude that Dr Wong was within the prescribed time when she lodged her application on 8 November 2017 by email addressed to [email protected]. It arrived one day outside what would but for the public holiday, have been the prescribed time. I have, however, decided that it was not out of time when I work through the effect of the ET Act and the AI Act:
(1)By virtue of ss 14B(1) and 14(2)(c) of the ET Act, the emailed application is deemed to have been received at the Tribunal’s Melbourne Registry. It is the Registry that has the closest relationship to, in the words of s 14(2)(c), the “underlying transaction”. In the context of a matter in the Tribunal, the “underlying transaction” is the application for review of an administrative decision. Matters that would bear on identifying which Registry has the closest relationship with that application for review would include the applicant’s place of residence. In a case in which the subject-matter of the decision concerns a particular location, that would also have bearing. In this case, I find that the Melbourne Registry is the closest registry to Dr Wong’s place of residence. It is also the registry located most closely to the area that is the focus of the decision of which she seeks review. That decision is concerned with the medical services available in the area in which her place of employment is located.
(2)As Dr Wong’s application is taken to have been received in the Melbourne Registry, it has been lodged in that Registry.
(3)Applying s 37 of the AI Act as there is no statement to the contrary in the AAT Act, the prescribed time of 28 days is calculated by reference to the time in the State of Victoria where the Melbourne Registry is located.
(4)The 28th after a document setting out the terms of the decision was given to Dr Wong was a public holiday.
(5)Applying s 37(3) of the AI Act, Dr Wong was permitted to lodge her application on the day after the public holiday i.e. 8 November 2017.
(6)As Dr Wong lodged her application on 8 November 2017, she did so within the prescribed time under the AAT Act.
| I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for the decision herein of Deputy President Forgie |
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Associate
Dated: 21 November 2017
| Hearing on the papers: | 21 November 2017 |
Solicitor for the Applicant: | Ms T Ararat |
Solicitor for the Respondent: | Legal Services Branch |
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Limitation Periods
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