FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - whether application for review of a decision of the Refugee Review Tribunal can be lodged by facsimile transmission - distinction between “file” and “lodge” - fresh evidence

STATUTES - construction - meaning of “lodged”

Migration Act 1958 (Cth) s 478

Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477 applied

AL Campbell & Co Pty Ltd v Federal Commissioner of Taxation (1951) 82 CLR 452 mentioned

Commonwealth Bank of Australia v Quade & Ors (1991) 178 CLR 134 applied

Francis v City of Ringwood & Ors (1978) 54 LGRA 323 applied

Furlan v Wakool Shire Council (1990) 69 LGRA 394 distinguished

Greater Wollongong City Council v Cowan (1953) 93 CLR 435 at 444 applied

Orr v Holmes (1948) 76 CLR 632 applied

Purden Pty Ltd v Registrar in Bankruptcy (1982) 43 ALR 512 considered

Pyx Granite Co Ltd v Ministry of Housing & Local Government [1960] AC 260 discussed

Talbot v NRMA Holdings Ltd & Ors (1996) 139 ALR 755 mentioned

Yong Jun Qin v Minister for Immigration & Multicultural Affairs (1997) 144 ALR 695 mentioned

THE COURT ORDERS THAT:

1.         Application for leave to appeal granted.

2.         Appeal allowed.

3.         Set aside the order of Tamberlin J made on 25 September 1997 and in lieu thereof order that the notice of objection to competency and the motion on notice each filed on 30 July 1997 be dismissed.

4.         Respondent to pay the appellant’s costs of the appeal and the costs of the proceedings at first instance.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

On appeal from a judge of the Federal Court of Australia

REASONS FOR JUDGMENT

THE COURT:  The issue for decision on this appeal is whether the Federal Court has jurisdiction to hear and determine an application to review a decision of the Refugee Review Tribunal when that application was sent by facsimile transmission to a Registry of the Court.  The resolution of this issue depends upon the interpretation of s 478 of the Migration Act 1958 (Cth).  If it is to be narrowly construed, as has been submitted by the respondent, then the appellant, who was denied the status of refugee and thus refused a protection visa under s 36 of the Migration Act, will be unable to seek redress although the decision of the Tribunal might be affected by a reviewable error of law. 

The appellant made her application to the respondent for the grant of a protection visa on 11 March 1997.  A delegate of the respondent considered the application and determined that the appellant was not a refugee.  The appellant then filed an application to review the decision of the delegate.  That application was considered by the Tribunal and the decision of the delegate was affirmed.  The appellant was notified of the decision of the Tribunal on 9 May 1997. 

The appellant seeks a review of the decision of the Tribunal.  The Federal Court has jurisdiction to review a decision of the Tribunal on any one or more of the grounds found in
s 476 of the Migration Act.  But before the Court can exercise that jurisdiction s 478(1) requires the application to review the decision to:

“(a)     be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976;  and

 (b)      be lodged with a Registry of the Federal Court within 28 days of the           applicant being notified of the decision.”

The appellant sent her application to review the decision of the Tribunal to the New South Wales Registry of the Federal Court by facsimile transmission on 30 May 1997.  The application was in the form specified by the Rules but was not accompanied with the fee prescribed by the Federal Court of Australia Regulations or an application to waive or defer the payment of that fee.  By those regulations a document must not be filed in a Registry unless the fee for that filing has been paid or has been waived by the Registrar or the Registrar has deferred the payment of the fee.  Shortly after the application was received at the Registry it was misplaced and its whereabouts are still unknown.

Under cover of a letter dated 4 June 1997 the appellant forwarded to the Registry an application to waive the fee payable on her application to review and a further copy of her application to review.  Those documents reached the Registry on 11 June 1997.  The Registrar agreed to waive the fee and the application to review was stamped as having been filed on 11 June 1997. 

Believing that the application to review had not been received by the Registry until 11 June 1997, the respondent applied by motion on notice to have the application dismissed.  The motion came on for hearing before Tamberlin J on 26 September 1997.  At the hearing the appellant appeared in person and the respondent was represented by Counsel.  The appellant informed Tamberlin J (she did not give evidence to this effect) that she had sent her application to the Registry by facsimile transmission on 28 May 1997.  However, the file maintained by the Court indicated that the application had been received on 11 June 1997 and on that basis his Honour had no alternative but to order that the application be dismissed.

This appeal is from the order of Tamberlin J.  Before dealing with the merits of the appeal two preliminary matters must be dealt with.  First, the respondent says that the appeal is incompetent for the reason that the order of Tamberlin J was interlocutory in nature and the appellant did not obtain an order for leave to appeal as required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth).  However, the respondent does not oppose the grant of leave that the appellant now seeks if leave is required.

We do not think that it is necessary to determine whether the order made by Tamberlin J was interlocutory.  If it was we have no doubt that leave should be granted.  The effect of the order under challenge is to deny the appellant the ability to contest the validity of an adverse decision of the Tribunal.  The result of the order will be that the appellant will be deported to a country where she says she will suffer persecution.  In these circumstances the Court would only refuse the grant of leave if the Court was of the opinion that the appeal was bound to fail.  We are plainly not of that opinion. 

The second preliminary matter is an application made by the appellant to rely on evidence that was not before the trial judge.  The Court is entitled to receive further evidence on an appeal: see s 27 of the Federal Court of Australia Act.  The circumstances in which an appellate court will receive further evidence are limited.  Speaking generally, two conditions must be satisfied; viz.  (a) if the evidence had been available at the trial it is reasonably clear that an opposite result would have been produced, and (b) reasonable diligence was exercised to procure the evidence which the defeated party failed to adduce at the trial: see Orr v Holmes (1948) 76 CLR 632;       Greater Wollongong City Council v Cowan (1953) 93 CLR 435 at 444; Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 140.

The evidence which the appellant seeks to adduce consists of records maintained by the New South Wales Registry of the Court that were not known to exist when the matter was before the trial judge which show that the Registry had received a facsimile transmission from the appellant on 30 May 1997 and her affidavit that the transmission comprised her application to review.  The respondent does not object to the reception of this evidence.  Having regard to the obvious importance of the evidence the appellant should be permitted to rely upon it.

We can now turn to the interpretation of s 478.  The question that arises is whether an application to review is “lodged” with a Registry of the Court when it is sent to the Registry by facsimile (that is electronic) transmission.

It is not in doubt that the jurisdiction of the Court to hear and determine an application for the review of a decision of the Tribunal depends upon compliance with s 478(1)(b): Yong Jun Qin v Minister for Immigration & Multicultural Affairs (1997) 144 ALR 695.  But for the very reason that non-compliance with s 478(1)(b) will prevent the Court exercising supervisory jurisdiction over the Tribunal great care should be taken to ensure that the provision is construed in a way that will avoid injustice to the extent that its language permits.  The jurisdiction of the Federal Court to control the proceedings of the Tribunal by judicial review is an important jurisdiction.  When the Tribunal errs in law the Court should have the power to put it right.  The Parliament should not be taken to have deprived the Court of that jurisdiction except by the clearest language.  In Pyx Granite Co Ltd v Ministry of Housing & Local Government [1960] AC 260 Viscount Simonds said at 286:

“It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s courts for the determination of his rights is not to be excluded except by clear words.  That is ... a ‘fundamental rule’ from which I would not for my part sanction any departure.”

The corollary of this “fundamental rule” is that the Court should not interpret a provision such as s 478 narrowly or with any rigidity: see as an example of this approach AL Campbell & Co Pty Ltd v Federal Commissioner of Taxation (1951) 82 CLR 452 at 461.

What is meant by the word “lodged” in the phrase “lodged with a Registry of the Federal Court”?  The first matter to notice is that s 478 is concerned with an act of a party and not with an act of the Court or an officer of the Court.  This distinction is an important one.  By the Rules of the Federal Court a proceeding in the original jurisdiction of the Court is commenced by the “filing” of an application (see Order 4 rule 1(1)) and an appeal is instituted by the “filing” of a notice of appeal (see order 52 rule 12).  “Filing” is the word used to describe the process of placing a document in the records of a court or its registry: see Purden Pty Ltd v Registrar in Bankruptcy (1982) 43 ALR 512 at 515.  Because s 478 is concerned with an act of a party it cannot be supposed that the word “lodge” is synonymous with the word “file”.  A party who is required to “lodge” a document does not have the power or ability to “file” that document among the records of the Court or its registry. 

What will suffice to satisfy that requirement that a document be “lodged” with a registry?  The word “lodge” appears to us to have no special or technical meaning.  It is then to be given its ordinary meaning.  A reference to the Oxford English Dictionary shows that the word has a number of meanings but two appear apposite.  They are:

“c        Deposit in a specified place of custody or security

  e        Deposit in court or with an official a formal statement of (a complaint,       objection, etc);  bring forward, allege, (an objection etc).”

In accordance with these meanings an application to review will be “lodged” when it comes into the possession of a Registry or the staff of a Registry.  The means by which possession is obtained does not matter.  It could come about when an application is delivered into the hands of the Registry staff or, if the application is posted, when it is received by the Registry.  When an application to review is sent by facsimile transmission to a facsimile machine that is located in the Registry the application will be in the possession of the Registry when the transmission is complete: compare Talbot v NRMA Holdings Ltd (1996) 139 ALR 755.

Two authorities to which we will now refer support this conclusion  The first is Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477.  The question that arose in that case was whether an application to the Administrative Appeals Tribunal for the review of a decision of the Collector of Customs made under the Customs Tariff Act 1982 (Cth) had been lodged with the Tribunal within time.  The application had been sent to the Tribunal by post but because it was not accompanied with the prescribed fee it was returned to the applicant.  Section 68 of the Administrative Appeals Tribunal Act 1975 (Cth) provides that “where a document is required by the Act to the lodged with the Tribunal, the document shall be lodged at the office of the Registrar or of a Deputy Registrar”.  The Full Court held, by majority, that the application had been lodged when first it was received at the Registry notwithstanding that it had been returned to the applicant.  In the course of his reasons Northrop J said at 488-489:

“Thus, in s 68 of the Act, the word ‘lodged’ is used in the sense of placing or depositing a document at the office of the Registry or a Deputy Registrar.  It appears to be the practice of the Tribunal to allow this to be done by post.  Whether the lodging is done by post or by depositing the document at the office, a concept of acceptance is required in a sense similar to that required with respect to the presentation of a document.  There must be a physical acceptance of the document by an officer of the Registry.  Thus, if an application is posted but not delivered to a Registry, the application is not lodged.  In all probability, it is lodged when it is received at the office of the Registry.  Similarly, a document deposited on a counter at the office of a Registry may not be lodged, but if taken by an officer, or in other words received by that officer, it is accepted for the purpose of lodging.”

The reasons of Sweeney J are to the same effect.  It is to be noticed that Northrop J considered that lodgment comprised two acts, namely the delivery of an application to review and the acceptance of it by an officer of the Registry.  What his Honour meant by “acceptance” in this context is a little unclear.  Earlier in his reasons (at 488) his Honour suggested that “acceptance” meant “physical acceptance” and in the passage cited his Honour appears to equate “acceptance” with the physical receipt of the document.  Provided “acceptance” is understood to mean that the Registry had obtained possession of the document, we agree with his Honour’s views.

The second decision is Francis v City of Ringwood (1978) 54 LGRA 323 a decision of the Supreme Court of Victoria.  There the question was whether a planning appeal to the Town Planning Appeals Tribunal had been made within time.  Section 20(2) of the Town and Country Planning Act 1961 (Vic) provided that “every appeal shall be lodged with the Registrar within the prescribed time” and then went on to impose on the Registrar a duty to cause a copy of that appeal to be served on various people dependent upon the circumstances.  The regulations made under the Act fixed the time for lodging an appeal to be within 21 days after notice of the original determination was given.  The question that the court was required to consider was whether the act of posting a notice of appeal (it was not physically received within time) meant that the appeal had been “lodged”.  McInerney J held that it did not.  His Honour said at 327:

“I am unable to take the view that the word ‘lodging’, which in my view is correctly defined in the judgment of the appeals tribunal, is to be regarded as satisfied when a letter is placed in the post addressed to the Registrar with the consequence that the document would be deemed to have been lodged with the Registrar, although it never arrived and never was received by him into his physical custody.  In my view, a document is lodged when it comes into the hand of the Registrar or his staff when it is received in the Registry.”

Here, as in Angus Fire Armour, the focus of attention is on the receipt of the document in the Registry. 

The view that was urged upon us by the respondent was that an application to review is not “lodged” unless there is conduct by the Registry staff that signifies that the document has been accepted as a document to be lodged with the Registry.  This was the view of Jenkinson J who was in dissent in Angus Fire Armour.

Apart from the fact that this contention was not accepted by the majority in Angus Fire Armour we would in any event reject it for the following reasons.  First, it does not conform to the ordinary meaning of the word “lodged”.  Second, it ignores the distinction that has been made in the cases between “lodging” a document which is an act of a party and “filing” a document which is an act of the court.  Third, it assumes that a person delivering a document to a Registry will be advised whether the document is accepted or not.  Thus it has the potential to bring about a significant degree of uncertainty.  Fourth, for all practical purposes it will deny to an applicant the ability to post an application to review to a Registry.  If sent by post the applicant may not know for some time whether his or her application has been accepted in the sense explained by Jenkinson J.  If the application is rejected because it is deficient in some respect the time within which an application must be lodged might  have passed before an applicant could be aware of the fact that his or her application had not been accepted.  Fifth, for the same reasons it would deny an applicant the ability to lodge a document by facsimile transmission.  Finally, it could result in the position that an application for review that is made in the manner specified by the Rules and delivered to the Registry within the time specified by s 478 but is wrongly rejected as being deficient (that is not accepted by the Registry staff) will not be regarded as having been lodged.  A construction of the meaning of the word “lodged” that would permit any of these results should be avoided. 

Further, we do not regard what was said by Hemmings J in Furlan v Wakool Shire Council (1990) 69 LGRA 394 to be to a different effect.  There his Honour held that an appeal against a determination of the defendant council had not been “lodged” with the Land and Environment Court of New South Wales when it was sent by facsimile transmission to the court.  The question was whether the appeal had been properly commenced.  The rules of the court provide that proceedings in the court are commenced “with the filing of an application” (Pt 7 r 2) and “file“ is defined to mean “lodge at the Registry (of the court)” (Pt 1 r 4).  His Honour said at 396:

“Unaffected by the context or subject matter, I would have thought legal proceedings would be commenced by personal service of prescribed documents and fees, and acceptance by the Registrar.  In my opinion, a document would not normally be said to be lodged at the Registry if merely deposited therein or served by post or facsimile transmission.” 

When the issue is whether an application has been commenced in a court or tribunal and commencement takes place when the originating application is “filed”, which in turn is defined as “lodged”, the word “lodged” may bear a special meaning that is different from the meaning of the word that is required in this case.  It is unnecessary for us to express any view about such a case.  But when the question is not whether a proceeding has commenced but merely whether a document has been “lodged” there is no difficulty with the conclusion that the document has been “lodged” when it is physically deposited with the court or tribunal or when it has come into the possession of the court or tribunal by some other means such as by post or facsimile transmission.

For the foregoing reasons we made the following orders on 9 March 1998:

1.         Application for leave to appeal granted.

2.         Appeal allowed.

3.         Set aside the order of Tamberlin J made on 25 September 1997 and in lieu thereof order that the notice of objection to competency and the motion on notice each filed on 30 July 1997 be dismissed.

4.         Respondent to pay the appellant’s costs of the appeal and the costs of the proceedings at first instance.

Associate:

Dated:              8 April 1998