Young v Conservator of Flora and Fauna (Administrative Review) - [2024] ACAT 65

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

YOUNG v CONSERVATOR OF FLORA AND FAUNA (Administrative Review) [2024] ACAT 65

AT 52/2024

Catchwords: ADMINISTRATIVE REVIEW – application for an extension of time to lodge application – whether 56-day period for extending time had expired – when a notice of decision is “given” to a person within s 10(3) of the ACT Civil and Administrative Tribunal Act 2008 – whether a notice is not “given” until it has been received by the person – whether provisions governing service in the Legislation Act 2001 apply to service of reviewable decision notice

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 10, 22B, 25, 67A, 160
Evidence Act 2011 s 160
Legislation Act 2001 ss 245, 250, pt 19.5
Tree Protection Act 2005 (repealed) ss 22, 25, 104, 106, 107A, 170, sch 1, pts 1.1, 1.2
Urban Forest Act 2023 s 301

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020
Australian Postal Corporation (Performance Standards) Regulations 2019 (Cth)

Cases cited:Choi v University of Technology Sydney [2017] NSWCATAD 198
Gallo v Dawson [1990] HCA 30
GR8 Constructions Pty Limited v O’Donnell [2011] ACTSC 92
Melville v Townsville City Council [2003] QCA 456
Peden & Commissioner for ACT Revenue [2013] ACAT 31
Rojas Constructions Pty Ltd v Steven [2024] ACAT 51
The Commissioner for Social Housing in the ACT v Falconer [2008] ACTRTT 5
Watson v ACT Planning and Land Authority [2010] ACAT 5
ZAG v NSW Trustee and Guardian [2016] NSWCATAP 19

Tribunal:Presidential Member J Lucy

Date of Orders:  2 August 2024
Date of Reasons for Decision:      27 August 2024
Date of Publication:  3 September 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 52/2024

BETWEEN:

ANDREW YOUNG
Applicant

AND:

CONSERVATOR OF FLORA AND FAUNA
Respondent

TRIBUNAL:Presidential Member J Lucy
DATE:2 August 2024

IN CHAMBERS ORDER

The application for review of a decision lodged on 7 June 2024 is dismissed.
The directions hearing listed on 5 August 2024 is vacated.
………………Signed………………..

Presidential Member J Lucy

REASONS FOR DECISION

Introduction

Mr Young applied for an extension of time to make an application to the Tribunal for review of the respondent’s refusal to approve the removal of a tree from Mr Young’s property. The key issue was whether the Tribunal has power to grant the extension of time which Mr Young seeks.
I have found that the Tribunal does not have that power. Accordingly, I have dismissed Mr Young’s application.

Background

On 27 December 2023, Mr Young applied to the respondent for approval to undertake a tree damaging activity (that is, for approval to remove a tree on his property) under section 22 of the Tree Protection Act 2005.
The Urban Forest Act 2023 commenced on 1 January 2024, repealing the Tree Protection Act 2005. Section 301 of the Urban Forest Act 2023 provides that the Tree Protection Act 2005 continues to apply in relation to an application made to the respondent under section 22 of the Tree Protection Act 2005 before that Act’s repeal.
Mr Young’s application was refused by the respondent under section 25 of the Tree Protection Act 2005 on 17 January 2024.
Mr Young applied to the respondent for reconsideration of the decision to refuse his application under section 106 of the Tree Protection Act 2005. The respondent confirmed the original decision by notice dated 5 March 2024.
The respondent’s reconsideration decision is a reviewable decision under the Tree Protection Act 2005.[1]
[1] Tree Protection Act 2005, s 104, sch 1 pts 1.1 (item 1), 1.2 (item 6)
A copy of the notice of reconsidered decision was posted to the applicant shortly after it was made, but the notice was not emailed to the applicant. The notice of decision informed the applicant that if he wished to apply to the Tribunal for review of the decision, an application “must be made within 28 days after this notice of the decision is made” and that any application to the Tribunal “should be made before close of business on Tuesday, 2 April 2024”.
Mr Young was overseas on 5 March 2024 and returned on 24 March 2024.
Mr Young requested a statement of reasons for the reconsidered decision on 27 March 2024. If a decision-maker makes a reviewable decision, an applicant is entitled to ask the decision-maker for a statement of reasons within 28 days after the decision is made and, with some exceptions, the decision-maker is required to provide that statement within 28 days of the application being made.[2]
[2] ACAT Act, s 22B
The statement of reasons was provided on 9 May 2024.
Mr Young applied to the Tribunal for review of the reconsidered decision on 7 June 2024. The application was made just over three months after the date of the decision.
At the first directions hearing, the Tribunal raised the question of whether it had power to extend time, in that the period in which it had power to extend time may have expired. The parties were invited to make submissions about this issue and the matter was adjourned to a further directions hearing. The parties provided the Tribunal with some submissions and evidence, and the Tribunal heard from them on the extension of time issue at a directions hearing on 29 July 2024. The parties were then given a further opportunity to provide the Tribunal with relevant material and did so.

Relevant legislative provisions

Pursuant to section 10(2) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), an application to the Tribunal for review of an administrative decision (in this case, review of the decision made on 5 March 2024) must be made “within 28 days after the day the decision to be reviewed is made.”
However, pursuant to section 10(3)(a) of the ACAT Act, if the decision was given to the applicant “later than 5 days after” the day the decision was made, the application may be made to the Tribunal within 28 days after the day the decision was given to the applicant.
The Tribunal may prescribe a time for doing a thing “that is longer than the time for doing the thing provided under [the ACAT] Act or an authorising law.”[3] The Tribunal has prescribed that it may extend the time for making an application for review of a decision by up to 56 days starting on the day after the day the time for making the application ends.[4]

Consideration

[3] ACAT Act, ss 25(1)(e), (2)
[4] ACT Civil and Administrative Tribunal Procedures Rules 2020 (the Rules), rule 38

In determining whether the Tribunal has power to extend time for the lodging of Mr Young’s application to the Tribunal, the first question which needs to be addressed is when was the decision “given” to the applicant for the purposes of section 10(3)(a) of the ACAT Act?
Evidence
The respondent relied upon a witness statement dated 17 July 2024 made by Rosie Dojcic, a project officer employed in the Tree Protection unit. Ms Dojcic’s evidence is that the letter to Mr Young containing the decision under review was scanned on 7 March 2024 at about 10:54am and placed in the mail room in Dickson for posting within 15 minutes. Her evidence is that generally mail from the mail room is picked up once a day, between about 10:00am and 12:00pm.
On 22 July 2024, the Assistant Director, Tree Protection, emailed the ACTGOV mail room asking for information about the procedures for posting letters and other information.
On 26 July 2024, the Assistant Director received an email from the “Converga Mailroom Team” (with the sender’s name not otherwise identified) stating that Converga was responsible for ACT Government mail services. The author of the email stated that the service took place daily, between 11:00am and 12:00pm, with mail collected by Converga’s courier and delivered to the mail sorting/lodgement facility in Tuggeranong. Once received, all mail was collected by Australia Post either on the day of arrival at the facility or the following business day.
On 26 July 2024, the respondent’s legal representative, Mr von Treifeldt, emailed the Converga Mailroom team, making enquiries about the process for providing mail to Australia Post and about delivery times for letters collected on 7 or 8 March 2024.
On 29 July 2024, the operations manager of Canon Business Services Australia Pty Ltd, Racquel Hollyman, emailed Mr von Treifeldt. She confirmed that all mail from the respondent’s Dickson Office that was collected on 7 and 8 March 2024 was lodged on the same business day, “with AusPost collecting from our facility between 3.00pm to 4.00pm.” She also stated:
In terms of the Auspost process, once collected, mail is taken back to their Fyshwick sorting facility where it will enter their system. Timeframes around this process are unknown, however from experience lodgements take places [sic] on the same day if the mail is at their facility before 6pm.
On 30 July 2024, the respondent’s legal representative received an email from “Den” of Customer Services at Australia Post. In the email, Den stated:
Our in-transit facilities (Sortation/Processing Facilities, Bulk Lodgement Centre, etc) do not have a specific clearance days or times. However, these facilities have a Clear Floor Plan policy that ensures that no parcels nor letters should be sticking around in the sortation area. The items are required to be transferred or planned to be transferred by the end of the same operating day of arrival at each in‑transit facility.
Mr Young’s evidence is that he was overseas on 5 March 2024 and received the notice of decision when he returned to Australia on 24 March 2024.
Mr Young also stated that on several occasions this year alone mail deliveries from Australia Post for neighbouring properties had been received at his address, and he had found out that his family’s mail, twice within the past month alone, had been misdirected to them and they had not immediately provided it to him.

Factual findings

I find that mail is usually collected from the Dickson Office of the respondent between 10:00am and 12:00pm, consistently with Ms Dojcic’s evidence. Whilst the email from the “Converga Mailroom Team” stated that mail was usually collected by 11:00am and 12:00pm, the unidentified author of the email is reporting the author’s understanding of what a courier engaged by Converga does. I find that Ms Dojcic’s evidence is more likely to be reliable, as she is more likely to have direct knowledge of the time at which mail is collected from her office.
On the basis of Ms Dojcjc’s evidence, I find that the letter to Mr Young was placed in the mail room at about 11:09am on 7 March 2024. I find, on the balance of probabilities, that the letter was collected on 8 March 2024. That is the most likely day because, in circumstances where there is no evidence as to the precise time of collection on 7 March 2024, it is more likely that the courier went to the Dickson office in the longer period from 10:00am to 11:08am, than in the shorter period from 11:08am to 12:00pm.
On the basis of Ms Hollyman’s email, I find that Australia Post collected the letter to Mr Young on 8 March 2024 between 3:00pm and 4:00pm.
I accept Mr Young’s evidence that he was overseas when the letter was sent to him and that he received the letter on his return, on 24 March 2024. I also accept his evidence about misdirected mail.

When was the email “given” to Mr Young within section 10(3)(a) of the ACAT Act?

Mr Young submits that for a decision to be “given,” the person to whom it is given must have received both the decision and the reasons for the decision. He submits that the decision which was provided did not represent a decision that was complete enough to be considered “given” as it did not contain the reasons. He further submits that the decision was not “given” until he received the statement of reasons on 13 May 2024.
I do not accept this submission.
The ACAT Act makes a clear distinction between a decision and reasons for a decision. Section 22B of the ACAT Act contemplates that, where an administrator has made a reviewable decision, the applicant may apply for a statement of reasons for the decision. This is to be provided within 28 days. It is plain from this provision that a “decision” may be made without reasons, and reasons may be provided later, if requested.
The decision was “complete” because it was an exercise of the power in section 107(3)(b) of the Tree Protection Act 2005; that is, it was a decision to “confirm, vary or set aside the first decision.” Section 107(3)(b) does not require that a decision-maker provide reasons for that confirmation, variation, or set aside decision.
Mr Young submits in the alternative that the notice of decision was only given to him on 24 March 2024, when he returned home from overseas and physically received it.
Courts and tribunals construing legislative provisions employing similar language to that used in section 10(3) of the ACAT Act have consistently found that a document is “given” to a party when service is taken to be effected, not when the party in fact received the document.
In Melville v Townsville City Council [2003] QCA 456, Philippides J considered a provision requiring a party to serve a notice of appeal “within 42 days after the court's decision is given to the party.” His Honour, with whom Jerrard JA and Dutney J agreed, observed that “[t]he words ‘given to the party’ have the ordinary meaning of ‘delivered’ or ‘handed over’” (at [27]). His Honour also observed (at [28]) that:
In the case where the decision is “given to” a party by post, i.e. served by posting the document as a letter, service is taken to be effected at the time when the letter would be delivered in the ordinary course of the post, unless the contrary is proved (see ss 39 and 39A of the Acts Interpretation Act).
It should be noted that the submission was not put in that case that a document was not “given” to a party until the party in fact received it.
In ZAG v NSW Trustee and Guardian [2016] NSWCATAP 19 at [5]-[10], the Appeal Panel of the NSW Civil and Administrative Tribunal considered a rule which required a party to lodge an appeal, relevantly, within 28 days from the day on which the party was given reasons for the decision. The Appeal Panel found that this referred to the time at which the reasons were delivered to the party’s address for service, irrespective of the date on which the party in fact received those reasons.
That decision was followed in Choi v University of Technology Sydney [2017] NSWCATAD 198, where the NSW Civil and Administrative Tribunal commented (at [23]) that it was not necessary for the applicant to have read the contents of a decision for the decision to have been given to her.
The respondent relies upon section 250(1) of the Legislation Act 2001 which provides that “[a] document served by post under [part 19.5] is taken to be served when the document would have been delivered in the ordinary course of post.” Section 245 provides that part 19.5 “applies to a document that is authorised or required under a law to be served (whether the word ‘serve’, ‘give’, ‘notify’, ‘send’ or ‘tell’ or any other word is used).”
The reviewable decision notice was required by section 107A of the Tree Protection Act to be served on or given to Mr Young. Accordingly, part 19.5 of the Legislation Act 2001 applies to it.
There is a question as to whether the document was served “under” part 19.5 (such that section 250(1) of the Legislation Act 2001 applies) when provisions in other legislation may govern the service of the notice.[5]
[5] For a consideration of whether service occurred “under” part 19.5 in a different context, see The Commissioner for Social Housing in the ACT v Falconer [2008] ACTRTT 5 at [16]-[24] and Peden & Commissioner for ACT Revenue [2013] ACAT 31 at [31]-[39]
The notice of reconsidered decision was a “reviewable decision notice.” Section 107A of the Tree Protection Act 2005 provides:
If a person makes a reviewable decision, the person must give a reviewable decision notice only to each entity mentioned in schedule 1, part 1.2, column 4 in relation to the decision.
Note The requirements for reviewable decision notices are prescribed under the ACT Civil and Administrative Tribunal Act 2008.
Section 67A(1) of the ACAT Act provides:
A person who makes a reviewable decision must take reasonable steps to give written notice (a reviewable decision notice) of the decision to any person whose interests are affected by the decision.
Part 2.2 of the ACT Civil and Administrative Tribunal Procedures Rules 2020 (the Rules) contains rules governing the service of documents. However, the Rules themselves apply to a proceeding in the ACT Civil and Administrative Tribunal (ACAT), with inapplicable exceptions.[6] The obligation in section 67A of the ACAT Act to take reasonable steps to notify a person of a reviewable decision notice arises before a proceeding is commenced at ACAT (or, at least, independently of any such proceeding being commenced). Accordingly, the service provisions in the Rules do not apply to the service of a reviewable decision notice.
[6] Rules, r 5(1)
For these reasons, there is no alternative legislative regime governing the service of the reviewable decision notice, and I conclude that it was served “under” part 19.5 of the Legislation Act 2001.
Subsection 250(2) of the Legislation Act 2001 provides that section 250(1) does not affect the operation of section 160 of the Evidence Act 2011 (Postal articles). Section 160 does not apply to proof of service in proceedings in the Tribunal, so may be disregarded.[7]
[7] Watson v ACT Planning and Land Authority [2010] ACAT 5 at [19]. See also Peden & Commissioner for ACT Revenue [2013] ACAT 31 at [38]
As the respondent submits, the effect of section 250(1) of the Legislation Act 2001 is that the notice was given to the applicant when it would have been delivered to his mailbox in the ordinary course of post. For reasons given above, I reject the applicant’s argument that the notice was not given to him until he in fact received it.
Mr Young’s evidence that his mail is sometimes misdirected to neighbours does not prove that the reviewable decision notice was in fact delivered to a neighbour and then later put in his mailbox. He did not point to any evidence establishing that that was in fact what occurred. Refshauge J has described section 250 of the Legislation Act 2001 as “a statutory deeming provision that is not provisional in the sense that deemed date of service is subject to proof of actual service to the contrary.”[8] The evidence that Mr Young’s mail is sometimes wrongly delivered to neighbours is not sufficient to displace the presumption in section 250(1) of the Legislation Act 2001 that the notice was given to him when it would have been delivered in the ordinary course of post.
[8] GR8 Constructions Pty Limited v O’Donnell [2011] ACTSC 92 at [11]
The next question is when the notice would have been delivered to Mr Young’s address in the ordinary course of post. The Australian Postal Corporation (Performance Standards) Regulations 2019 (Cth), effective at the relevant time, provided that the letter was required to be delivered within three days after the day of posting.[9] I accept the respondent’s submission that this ought to be considered the ordinary course of post, for the purposes of section 250(1) of the Legislation Act 2001. I find, on the balance of probabilities, having regard to the emails sent by “Den” and Ms Hollyman, that the “day of posting” was 8 March 2024, the day the notice was collected by Australia Post and “lodged.”[10] Saturday 9 March 2024, Sunday 10 March 2024, and Monday 11 March (a public holiday) are not business days. Three business days after lodgment is therefore 14 March 2024.
[9] Australian Postal Corporation (Performance Standards) Regulations 2019 (Cth), reg 8(6)
[10] Australian Postal Corporation (Performance Standards) Regulations 2019 (Cth), reg 8(7)(a)
The decision notice was given to Mr Young on 14 March 2024, more than five days after the decision was made. In those circumstances, Mr Young was required to lodge his application for review with ACAT within 28 days after the day the notice was given (section 10(3)(a) of the ACAT Act). It was required to be lodged by 11 April 2024.

By rule 38(4) of the Rules, the Tribunal has power to extend the time for making an application for review of a decision by up to 56 days starting on the day after the day the time for making the application ends. That period expired on 6 June 2024, a day before Mr Young’s application for review was lodged.
For these reasons, the Tribunal does not have power to extend time or to hear Mr Young’s application and the application must be dismissed.

Discretionary considerations

In case I am wrong about the day on which the 56-day period for extending time ended, and it is a day or more later, I have gone on to consider whether, in those circumstances, I would have extended time.
The respondent does not oppose the application for the extension of time, if the Tribunal has power to extend time.
One of Mr Young’s submissions is that the respondent’s staff should have emailed the decision notice to him, given that the respondent’s staff had emailed documents to him on other occasions. If that had occurred, he would have received the decision notice sooner.
Whilst that may have been desirable, it is not something the respondent is required by legislation to do. The respondent was entitled to give the notice of decision to Mr Young by posting it to his address.
Mr Young submits that, as a lay person, he did not understand from the reasons given for the reviewable decision when it was first sent to him, what those reasons were. The decision-maker stated that the application did not meet the criteria without identifying which criteria were not met and why.
Mr Young referred to the notice on the ACAT website, which suggests that reasons should accompany the decision:
The original decision maker should tell you in writing of the decision and the reasons for it. If the decision can be reviewed by ACAT, the written notice will say you can apply to ACAT. This is called a reviewable decision notice.
Mr Young said that the decision and the reasons were “crucially interdependent” and that it was critical that the reasons came within the required period.
Mr Young said that he wanted to know what the reasons were before spending the money on the application fee.
Within two days of seeing the notice of decision, Mr Young requested the reasons for decision. The decision-maker was obliged to provide reasons within 28 days, and it took 47 days. Mr Young explained that he only received the reasons after sending a reminder email on 6 May 2024, stating that he needed the information to make an informed decision on how to proceed. The statement of reasons was sent by email on 13 May 2024.
Mr Young’s evidence is that he rang both ACAT and the respondent, and an ACAT staff member told him on about 28 March 2024 to put in the application and said that they would look at it to see if it was beyond the date. When Mr Young came in to ACAT to submit it on about 10 or 11 June 2024, he told the registry staff member that it may be a couple of days late. She said to lodge the application, but not to pay the lodgement fee. A few days later a registry staff member called him, asking him to pay the fee.
I have applied the established principles applicable when determining an application for an extension of time; and, in particular, have considered whether an extension would be in the interests of justice.[11]
[11] See Rojas Constructions Pty Ltd v Steven [2024] ACAT 51, see especially at [38], [75]
If I had power to extend time, I would not do so for the following reasons.
Mr Young’s delay in applying for review was extensive, being (on the best-case scenario) about 56 days after the statutory time frame expired. Mr Young’s explanation for the delay is, in large part, that he did not want to pay the filing fee before he had received the reasons for decision. Whilst that may be understandable, it is not what the statutory scheme contemplates. A party has 28 days to seek review from the date of the decision or the date it is given to the party, and also has 28 days to ask for reasons from the date the decision is made.[12] Accordingly, the legislature intends a party to apply for review without necessarily having reasons. The respondent’s delay in providing those reasons is therefore not a legitimate reason for not lodging an appeal in time.
[12] ACAT Act, ss 10(2), (3), 22B
After advising that Mr Young may apply to ACAT for review of the decision, the reviewable decision notice stated:
The application to ACAT for review of the decision must be made within 28 days after this notice of the decision is made. The application for review is separate to an application for a statement of reasons from the Conservator. Your application to the ACAT should be made before close of business on Tuesday 2 April 2024.
This advice proved to be incorrect, because it was more than 5 days before the decision notice was given to Mr Young (meaning he had a bit longer to seek review). Nevertheless, Mr Young had been put on notice that he had 28 days to apply for review, and that the application for review was separate to an application for a statement of reasons. Being notified of this, he chose to delay in lodging an application for review whilst waiting for reasons.
On Mr Young’s own evidence, he was advised by a registry staff member to “put in an application” on about 28 March 2024, but he did not do so until over two months later.
Even assuming, in Mr Young’s favour, that his application has merit, the interests of justice do not require the Tribunal to grant an extension of time. The object of the rule allowing the Tribunal to extend time is to ensure that the provisions which fix times for doing acts do not become instruments of injustice.[13] I am not satisfied that the provision requiring Mr Young to apply for review within 28 days would work an injustice in this case. There is no reason why he could not have lodged his application for review after returning from overseas on 24 March 2024 and before the end of the 28-day period on 11 April 2024.
[13] Gallo v Dawson [1990] HCA 30 per McHugh J
For these reasons, if I had power to extend time, I would dismiss Mr Young’s application for an extension of time on discretionary grounds.
………………………………..

Presidential Member J Lucy

Dates of hearing:	29 July 2024
Applicant:		Mr Young
Respondent:		Mr von Treifeldt, ACT Government Solicitor