JUDGMENT No. 737 [en CATCHWORDS ADMINISTRATIVE LAW - Administrative Appeals Tribunal - whether an application delivered by post and returned by District Registrar of Tribunal because not accompanied by the required filing fee has nevertheless been validly made within relevant limitation period. PRACTICE AND PROCEDURE - whether application is validly made even though required filing fee is not proffered. Administrative Appeals Tribunal Regulations, regs. 19 and 20 Customs Act 1901 ss.167 and 273GA ANGUS FIRE ARMOUR AUSTRALIA PTY LTD v THE COLLECTOR OF CUSTOMS (NSW) No. VG 242 of 1987 ae Jit me s . era Woodward J. je) & Bite 23 December 1987 Lu © 2 Melbourne ic ; i IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VG 242 of 1987 GENERAL DIVISION ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: ANGUS FIRE ARMOUR AUSTRALIA PTY LTD Applicant and THE COLLECTOR OF CUSTOMS (NSW) Respondent MINUTES OF ORDER COURT: Woodward J. DATE: 23 December 1987 PLACE: Melbourne THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondent's costs. (NOTE: Settlement and entry of orders is dealt with in 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VG 242 of 1987 wwe ew we GENERAL DIVISION ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: ANGUS FIRE ARMOUR AUSTRALIA PTY LTD Applicant and THE COLLECTOR OF CUSTOMS (NSW) Respondent COURT: Woodward J. DATE: 23 December 1987 PLACE: Melbourne REASONS FOR JUDGMENT This appeal raises one very short but quite important issue - whether an application to the Administrative Appeals Tribunal ('the Tribunal') which was sent by post without the required filing fee and was returned by the fTribunal's District Registrar was, nevertheless, validly made within the relevant six months time limit. ey The application sought to review an administrative decision made under the Customs Tariff Act 1982. It is common ground between the parties that s.167 of the Customs Act 1901 requires such an application to be made "within six months after the date" on which customs duty is paid under protest; and there is no provision for that time to be extended. In the present case that payment was made on 10 November 1986. On 8 April 1987 a letter enclosing an appropriate form of application was received by the District Registrar of the Tribunal from the applicant's solicitors. It contained no lodgement fee of $200 as required (since 1 March 1987) by the Administrative Appeals Tribunal Regulations ('the AAT Regulations'). On 14 April 1987 the District Registrar replied in the following terms, "Dear Sirs, Re: POLYURETHANE HOSE PIPING - ANGUS FIRE ARMOUR(AUST) AND COLLECTOR OF CUSTOMS. I refer to your Application for Review which you filed with this office on 8 April 1987. Having perused your Application I am satisfied that it attracts the $200 filing fee as prescribed by Regulation 19 of the Administrative Appeals Tribunal Regulations (Amendment) dated 19 February, 1987. I therefore return herewith your Application which will require refiling by you, with the prescribed fee." e On 20 May 1987, the applicant's solicitors sent the application back with the appropriate fee. The application reached the Registry of the Tribunal on 22 May - clearly some 11 or 12 days after the six months had expired. The relevant parts of regulations 19 and 20 of the AAT Regulations are as follows: "19. (1) .... a fee of $200 is payable on the lodging with the Tribunal of an application for a review of a decision .... 20. Where: (a) the prescribed fee under regulation 19 has been paid for the lodging with the Tribunal of an application for a review of a decision; and (b) the proceeding terminates in a manner favourable to the applicant; the prescribed fee shall be refunded in whole to the applicant." S.167 of the Customs Act 1901 provides, so far as is relevant, "(4) No action shall lie for the recovery of any sum paid to the Customs as the duty payable in respect of any goods, unless the payment is made under protest in pursuance of this section and the action is commenced within the following times: (a) In case the sum is paid as the duty payable under any Customs Tariff, within 6 months after the date of the payment; ..." The same time limit applies to applications to the Tribunal, by reason of s.273GA of the Act. ra Thus the question to be determined in the present case is whether an application was made to the Tribunal by the letter of 8 April 1987. In my view it was not. The application is made on its "lodging with the Tribunal". The Shorter Oxford Dictionary gives the relevant meaning of the word 'lodge' as being "to put and leave in a place of custody or security ..... to deposit in court or with an official ...." In my view there is an element of acceptance required before it can be said that a document has been 'lodged' with the Tribunal. If a solicitor's clerk were to present an application at the District Registrar's office, and a member of the Registrar's staff refused to accept the document, because there was no lodgement fee proffered or it appeared defective in form, it could not be said that the document had been lodged. If the refusal to accept was misconceived, a court could compel the District Registrar to accept it and treat it as having been lodged on the date it was presented. I do not believe the situation to be any different just because the document is received in the post rather than handed across the counter. Provided it is returned by post reasonably promptly, and for good reason, it has not been lodged'. In the present case the application was received on a Wednesday and posted back the following Tuesday. In my opinion this was not an unreasonable delay in a case where e there were still almost four weeks within which' the application could be properly lodged. Had the application been accepted, perhaps by oversight, without the prescribed fee it would, in my view, have been lodged within time - although the Tribunal might properly have refused to deal with it until the fee had been paid. Similarly the Registrar might accept lodgement without fee, on receiving an undertaking to pay, if a time limitation were about to expire and there was no time to obtain the $200. But there would, in my view, be no obligation to do so. Counsel for the applicant argued that the regulation requiring payment of a fee cannot create what he called a "jurisdictional pre-condition"; the jurisdiction to review customs tariff decisions is given by the relevant Acts and cannot be limited by regulation. But the recent requirement that a lodgement fee be paid does not affect the substantive rights of applicants for review; it merely affects the means by which they assert those rights. If the rights be lost because the prescribed means are not complied with within a period laid down by statute, that is not the result of the regulation, but of the delay in following prescribed procedures. It cannot be said that the regulations have had the effect of depriving the Tribunal of jurisdiction. e Counsel drew attention to the difference between the wording of the subject regulation. "... a fee of $200 is payable on the lodging with the Tribunal of an application «.-.", and of the Federal Court of Australia Regulations which provide (in reg.2(3)) "A document shall not be filed in a Registry of the Court unless the fee (if any) payable upon or in respect of the filing has been paid." While it is true that the latter wording makes the situation concerning court documents much clearer, I have no doubt that the Tribunal's District Registrar was entitled to insist on the payment of the prescribed fee before accepting lodgement of the application. For the reasons which I have given, the appeal should be dismissed with costs. I certify that this and the five (5) preceding pages are a true and accurate copy of the Reasons for Judgment herein of The Hon Mr Justice Woodward Associate Dated: 23 December 1987 Counsel for the Applicant: Mr G.T. Pagone Solicitorsfor the Applicant: Messrs Madden Butler Elder & Graham Counsel for the Respondent: Mr G. Nettle Solicitor for the Respondent: Australian Government Solicitor