FEDERAL COURT OF AUSTRALIA

Revulge v Secretary, Department of Education [2015] FCA 895

THE COURT ORDERS THAT:

1.    The first respondent’s objection to the competency of this appeal, set out by notice dated 9 April 2015, be upheld.

2.    The appeal be dismissed as incompetent.

3.    The proceeding be listed at 9:30 am on 11 September 2015 to hear the parties’ submissions as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is the return of a Notice of Objection to the competency of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The decision of the Administrative Appeals Tribunal (“the Tribunal”) of which the applicant complains, which was made on 10 February 2015, affirmed the decision of a review officer at RMIT University (“RMIT”), which in turn affirmed an earlier decision not to re-credit the applicant’s “FEE-HELP” balance with respect to his enrolment at RMIT for Semester 1, 2013. For present purposes, it is not necessary to rehearse the nature of the applicant’s grounds in support of the re-crediting of that balance, nor the facts which were relevant before the Tribunal.

2    The first respondent’s Notice of Objection to Competency is based upon two circumstances:

(a)    the Notice of Appeal was filed outside the 28-day limit prescribed in s 44(2A) of the AAT Act; and

(b)    the Notice of Appeal does not state the “the precise question or questions of law to be raised on the appeal” as required by r 33.12 of the Federal Court Rules 2011 (“the Rules”).

3    As to the first of those circumstances, it is established on evidence which I should accept for the purposes of an interlocutory application that the Tribunal’s decision was sent by ordinary post to the applicant’s address as known to the Tribunal on 11 February 2015. The applicant’s appeal under s 44 was filed on 20 March 2015.

4    The provision upon which the first respondent relies, s 44(2A) of the AAT Act, provides as follows:

An appeal by a person under subsection (1) or (2) shall be instituted:

(a)    not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and

(b)    in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976.

5    Section 44(2A) refers to a document setting out the terms of the decision of the Tribunal being “given” to the person referred to. By s 28A(1)(a)(ii) of the Acts Interpretation Act 1901 (Cth), it was sufficient if the document was sent by prepaid post to the last known place of residence or business of the applicant. By s 160(1) of the Evidence Act 1995 (Cth), when an article is sent by prepaid post, it is presumed, in the absence of evidence to the contrary, that the article was received at the address to which it was sent on the fourth working day after having being posted.

6    In the present case, the decision of the Tribunal was placed in the post on 11 February 2015. It is presumed, therefore, that it was received at the applicant’s address on 17 February 2015. That was, therefore, the date upon which the decision was “given” to the applicant for the purposes of s 44(2A) of the AAT Act.

7    The applicant did not apply for an extension of time as he might have under s 44(2A). Rather, he submitted that I should find, on the facts, that the Tribunal’s decision was not given to him until 23 February 2015. But he led no evidence to that effect. Indeed, he led no evidence at all on the Notice of Objection to Competency.

8    The applicant attempted to remedy that deficiency in two ways. First, he applied to give oral evidence about the date upon which, and the circumstances in which, he received a copy of the Tribunal’s decision. Having heard him provide a summary, from the Bar table, of the evidence which he proposed to give, I took the view that it would not be fair to surprise the first respondent with evidence of the kind proposed. Had the evidence been placed on affidavit in a timely way, the first respondent would have had an opportunity to review it and to test it by conventional means. That opportunity would be denied the first respondent if the applicant were permitted to give the evidence which he proposed.

9    Secondly, the applicant sought an opportunity to file an affidavit stating the facts relevant to his assertion that he received a copy of the decision of the Tribunal only on 23 February 2015. That is to say, the applicant effectively sought an adjournment. That course was opposed by counsel for the first respondent. I saw no reason to grant the applicant the adjournment which he requested. The Notice of Objection to Competency was filed on 9 April 2015, and the date upon which it would be heard, 9 June 2015, was fixed when the matter was listed for directions on 17 April 2015. The applicant, who is legally qualified, had every opportunity to discharge the burden which arises under r 33.30(2) of the Rules by filing his affidavit within a time which would have provided the first respondent with a reasonable opportunity to consider the material, and to respond. It was not, in my view, satisfactory for the applicant to do nothing in this regard, to wait for the Notice of Objection to Competency to be listed for hearing, and then to seek the opportunity, in effect, to put his house in order.

10    To the extent that the Notice of Objection to Competency is based on the Notice of Appeal having been filed out of time, the objection must be upheld.

11    The other circumstance upon which the first respondent relies is that the Notice of Appeal did not state the precise question or questions of law to be raised on the appeal. Only one question, said to be a question of law, was referred to in the Notice of Appeal: “Relevant information not being taken into proper consideration by the respondents”. I take it that, by “the respondents” the applicant intended a reference to the Tribunal, which was named as the second respondent in the appeal. The single ground of appeal stated in the Notice of Appeal is an echo, almost verbatim, of the supposed question of law: “Failure to take into proper consideration, relevant information”.

12    What the applicant has stated in his Notice of Appeal does not, in my view, identify a question of law. Without more, for a body such as the Tribunal not to give “proper” consideration to “information” would not involve an error of law, and a statement that it had not done so would not identify a question of law as required by r 33.12(2)(b). Although it seems scarcely necessary to say so, the way the applicant has stated this question is insufficient to invoke the legal principle referred to by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39.

13    The above reasons had been substantially written, and I was in a position to hand down judgment on the first respondent’s objection, when the judgment of the Full court in Haritos v Commission of Taxation [2015] FCAFC 92 came to my attention. I gave the parties the opportunity to make submissions on the relevance of that judgment to the first respondent’s second point, and they did so. Having considered those submissions, I am of the view to the extent that the first respondent’s Notice of Objection to Competency relates to the sufficiency of the question of law stated in the applicant’s Notice of Appeal, it must be upheld.

14    For the above reasons, I propose to uphold the first respondent’s objection to competency, and to dismiss the proceeding. I shall hear the parties on the question of costs.

Associate:

Dated:    21 August 2015