Re Angus Fire Armour Australia Pty Ltd v the Collector of Customs (Nsw) [1988] FCA 339; 19 FCR 477 (29 September 1988)

FEDERAL COURT OF AUSTRALIA

Re: ANGUS FIRE ARMOUR AUSTRALIA PTY. LTD.
And: THE COLLECTOR OF CUSTOMS (NSW)
No. VG6 of 1988
Administrative Law - Practice and Procedure
[1988] FCA 339; 19 FCR 477

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney(1), Northrop(2) and Jenkinson(3) JJ.

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. 9, 19 and 20

Administrative Appeals Tribunal Act, 1975 - Ss. 29, 68 and Schedule 1.

Customs Act, 1901 - Ss.167, and 273GA

Purden Pty. Ltd. v. Registrar in Bankruptcy (1982) 64 FLR 306.

HEARING

MELBOURNE
29:9:1988

Counsel for the Appellant: Mr. N. Lucarelli

Solicitors for the Appellant: Madden Butler Elder & Graham

Counsel for the Respondent: Mr. G. Nettle

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The appeal be allowed with costs.

The order appealed from be set aside and in lieu thereof the following orders made:
(a) The appeal from the Administrative Appeals Tribunal

be allowed;
(b) The Direction of the Administrative Appeals
Tribunal dated 31 July 1987 be set aside;
(c) A declaration be made that the application for
review of decision forwarded under cover of the
letter of the Solicitors for the appellant to the
Administrative Appeals Tribunal and dated 31 March
1987 was an application for review under
sub-section 273GA(2) of the Customs Act 1901 and
was made within the time provided by statute;
(d) That the application for review be remitted to the
Administrative Appeals Tribunal to be heard and
decided according to law; and
(e) The respondent pay the appellant's costs of the
appeal from the Direction of the Administrative
Appeals Tribunal to a single Judge of the Court.

DECISION

Angus Fire Armour Australia Pty. Ltd. ("the importer") sought to review in the Administrative Appeals Tribunal an administrative decision by the Collector of Customs (N.S.W.) ("the Collector"), made under the Customs Tariff Act 1982 ("the Customs Tariff Act"), by which he classified certain fuel hoses imported and entered for home consumption by the importer on or about 10 November 1986 as falling under item 39.07.09 of Schedule 3 to the Customs Tariff Act.

2. On 10 November 1986 the importer paid, under protest, the amount of customs duty so determined.

3. On 8 April 1987 a letter dated 31 March 1987 was received by the District Registrar of the Tribunal from the importer's solicitors, as follows:

"We refer to the above matter and advise that we
act on behalf of the Applicant in this action,
Angus Fire Armour (Aust.).
We now enclose:-
Application for Extension of time for lodging
application for review of Decision: and
Application for Review of Decision by way of
service.".

The letter did not enclose a lodgment fee.

4. On 14 April 1987 the District Registrar replied in the following terms,

"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.".

5. The effect of the amendment of the Regulations to which the District Registrar referred was that, whereas there had previously been no requirement that a filing fee be paid, after 1 March 1987, when the amendment took effect, a filing fee became payable.

6. The relevant parts of regulations 9, 19 and 20 of the AAT Regulations as amended are as follows:

"9(1) The Registrar shall cause the date on which
a document was lodged or received at his office to
be recorded on the document.
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.".

7. Section 167 of the Customs Act 1901 provides, so far as is relevant,

"(1) If any dispute arises as to the amount or rate
of duty payable in respect of any goods, or as to
the liability of any goods to duty, under any
Customs Tariff, or under any Customs Tariff or
Customs Tariff alteration proposed in the
Parliament, the owner of the goods may pay under
protest the sum demanded by the Collector as the
duty payable in respect of the goods, and thereupon
the sum so paid shall, as against the owner of the
goods, be deemed to be the proper duty payable in
respect of the goods, unless the contrary is
determined in an action brought in pursuance of
this section.
(2) ...
(3) ...
(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; ...".

8. Under s.273 GA(1) of the Customs Act, application may be made to the Tribunal for review of a decision such as that involved in the present case. Sub-secs (2) and (5) are as follows:

"(2) Where a dispute referred to in sub-section
167(1) has arisen and the owner of the goods has,
in accordance with that sub-section, paid under
protest the sum demanded by the Collector, an
application may be made to the Tribunal for review
of the decision to make that demand and of any
other decision forming part of the process of
making, or leading up to the making of, that
first-mentioned decision.
(3) ...
(4) ...
(5) An application may not be made to the Tribunal
under sub-section (2) unless the application is
made within the time specified in paragraph 167(4)
(a) or (b), whichever is appropriate.".

9. It is common ground that the time for the making of the application was within 6 months after the date of payment under protest of the duty, which was on 10 November 1986.

10. In that period of 6 months the importer's solicitor had written the letter of 31 March 1987 enclosing its application, unaccompanied by and making no reference to the required fee, to which the District Registrar replied on 14 April 1987.

11. On 20 May 1987, the applicant's solicitors posted the application to the District Registrar with the appropriate fee. This letter reached the registry of the Tribunal on 22 May, some 12 days after the 6 months had expired.

12. Section 29 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") provides, amongst other things, that an application to the Tribunal for a review of a decision

"(a) shall be in writing;
(b) may be made in accordance with the prescribed form;
(c) shall set out a statement of the reasons for the
application; and
(d) ... shall be lodged with the Tribunal within the
prescribed time.".

13. The prescribed form is Form 1 in Schedule 1 to the Act and reads as follows:

" Form 1
ADMINISTRATIVE APPEALS TRIBUNAL
APPLICATION FOR REVIEW OF DECISION
To the Registrar - Registry.
I hereby apply in pursuance of sub-section 29(1) of
the Administrative Appeals Tribunal Act 1975 to
have the decision described in paragraph 4 below
reviewed by the Administrative Appeals Tribunal.
1. Name of applicant: -
2. Address of applicant: -
3. Applicant's address for service of notices: -
4. The decision to be reviewed is: -
5. The name of the person who made the decision
is: -
6. The office, appointment or title of the person
who made the decision is: -
7. The reasons for this application are: -
- Signature
- Date.".

14. The application in the present case followed this form.

15. Neither s.29 nor Form 1 makes any reference to the payment by the applicant of any fee.

16. Section 68 of the AAT Act provides:

"Where a document is required by the Act to be
lodged with the Tribunal, the document shall be
lodged at the office of the Registrar or of a
Deputy Registrar.".

17. In my opinion, s.273GA(1) of the Customs Act confers a right to make an application for review to the Tribunal and prescribes the time within which it is to be made, whereas ss.29 and 68 of the AAT Act prescribe the method by which that right is to be exercised.

18. The question which arises is whether, within the period of 6 months, the importer had made an application pursuant to s.273GA(5) in accordance with the requirements of the AAT Act, especially ss.29 and 68. In other words, had it lodged with the Registrar or the Deputy Registrar an application which conformed with the requirments of s.29 of the AAT Act?

19. The word "lodge" is not defined, and is to be given its ordinary meaning "To place, deposit" including the example "to deposit in court or with an official a formal statement of (an information, complaint, objection etc" (see Shorter Oxford Dictionary).

20. In the letter of 31 March 1987 the importer's solicitors enclosed what they described as an "Application for Review of Decision" by way of service, which the Deputy Registrar considered before replying in his letter of 14 April 1987.

21. The importers' "Application for Review of Decision" was in the prescribed form and met the requirements of s.29 of the AAT Act. Indeed, the Deputy Registrar after perusing it, did not suggest the contrary but simply referred to the obligation to pay the filing fee. In my opinion, the importer lodged its application within the prescribed time in accordance with ss.29 and 68 of the AAT Act.

22. Payments of duty under protest are not infrequently made and may involve very considerable sums of money. An importer faces a statutory time limit of 6 months upon the making of an application for review. Had it been intended in 1987, not merely to prescribe a fee, but also to produce the result that payment of the fee was to become a condition precedent to the lodging of an application, this latter change would have been one affecting transactions of considerable commercial and legal significance. It is not too much to expect that any such intention would have been expressed in plain words (see, for example Reg 2(3) of Federal Court of Australia Regulations).

23. On the hearing of this appeal, we have not been asked to deal with the question whether there was any power in the Tribunal to grant the importer an extension of time to make its application and we have not dealt with it.

24. We were referred to the case of Purden Pty Ltd v. Registrar in Bankrupty (1982) 64 FLR 306, which was not cited at first instance.

25. There a Full Court of this court had to consider a case in which a representative of Purden Pty. Ltd., as the Court said at p.308, "attended at the New South Wales Bankrupty Registry in Sydney and lodged there" a creditor's petition, "a cheque for sixty dollars being the fee prescribed under the rules for the presentation of a petition; and affidavits in support of the petition".

26. This was done on 9 February 1982. The creditor's representative "was then told by the Registry officer to whom she handed the documents that it was not possible for the petition to be sealed and issued that day and that she should return on Thursday 11 February, 1982, to collect it". The court noted that "the evidence does not show whether the cheque for sixty dollars remained at the Registry or was taken away by" the creditor's representative.

27. On 10 February 1982 a Deputy Registrar in Bankruptcy signed and sealed the petition and, on the note attached to it, listed the petition for hearing on 20 April 1982.

28. On 11 February 1982 a clerk from the office of the solicitors for the creditor went to the registry to collect the petition. He was informed by a Deputy Registrar in Bankruptcy that the petition could not be handed out because "it was out of time", the period of six months from the date of the act of bankruptcy on which the petition was founded having expired on 10 February 1982.

29. The primary judge, to whom a question of law was referred by the Registrar, held that a creditor's petition cannot be presented unless and until it is filed in the appropriate Registry; that filing is part of the presentation of a petition; that a petition is not filed until it has been lodged for filing in the Registry and all necessary steps required by the Bankruptcy Rules have been taken within the Registry to issue the petition culminating in the payment of the prescribed fee of sixty dollars.

30. The Full Court said (at p 310)

In our opinion the words 'presented' or
'presentation' are used in the Act, not in the
sense of the unilaterial act of the creditor of
showing the petition to the appropriate court
officer; but in the sense of handing or delivering
the petition to and acceptance by that officer.
The showing of the document to the court's officer
and its receipt by him are both necessary elements
in the notion of presentation of a petition.
However, what the officer does with the document
thereafter is nothing to the point as by then it
has been presented.".

31. The Full Court in Purden's case spoke of the creditor's having "lodged" with the Bankruptcy Registry the creditor's petition, the cheque and the affidavits in support of it. One cannot credit its members with having made an anticipatory judgment on the facts of this case, but their choice of the expression "lodge" is worthy of remark. More to the point is the fact that the Full Court held that the petition had been presented, although the the evidence did not show whether the cheque for $60 remained at the registry or was taken away by the creditor's representative. (see p 308)

32. In that case the Court had observed (at p 312) that r.180 provided that "a document shall not be filed, issued or otherwise dealt with unless the prescribed fee has been paid". It is true to say that the law relating to the presentation of a creditor's petition is subject to some considerations which are peculiar to bankrupty, but the reasoning of the Full Court, in my opinion, supports the conclusion that the importer in the present case had lodged its application within the prescribed time.

33. I would propose the following orders:

1. The appeal be allowed with costs.
2. The order appealed from be set aside and in lieu thereof
the following orders made:
(a) The appeal from the Administrative Appeals Tribunal
be allowed;
(b) The Direction of the Administrative Appeals
Tribunal dated 31 July 1987 be set aside;
(c) A declaration be made that the application for
review of decision forwarded under cover of the
letter of the Solicitors for the appellant to the
Administrative Appeals Tribunal and dated 31 March
1987 was an application for review under
sub-section 273GA(2) of the Customs Act 1901 and
was made within the time provided by statute;
(d) That the application for review be remitted to the
Administrative Appeals Tribunal to be heard and
decided according to law; and
(e) The respondent pay the appellant's costs of the
appeal from the Direction of the Administrative
Appeals Tribunal to a single Judge of the Court.

As stated by the trial Judge, "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 Tribunal's District Registrar was, nevertheless, validly made within the relevant six months time limit." His Honour determined that issue adversely to Angus Fire Armour Australia Pty. Ltd. ("the appellant") and it has appealed to the Full Court against the judgment of the trial Judge. During the hearing of this appeal, it became apparent that the difficulties have arisen from a looseness in the drafting of the provisions contained in both the Administrative Appeals Tribunal Act 1975 ("the Act") and the Administrative Appeals Tribunal Regulations ("the Regulations") made under the Act. In order to determine this appeal, it will be necessary to refer in some detail to the Act and the Regulations.

2. The Act establishes the Tribunal which consists of the President and such number of other members as are appointed in accordance with the Act; s.5. "The Tribunal has power to review any decision in respect of which application is made to it under any enactment"; sub-section 25(4), and for the purpose of reviewing a decision may exercise "all the powers and discretions that are conferred by any relevant enactment on the person who made the decision"; sub-section 43(1). Pursuant to s.64, the Governor-General has established Registries of the Tribunal one of which is established at Melbourne and is known as the Melbourne Registry. Section 65 contains provisions relating to officers of the Tribunal. There is a Registrar and such Deputy Registrars and other officers of the Tribunal as are required. These officers are appointed by the Minister and "shall have such duties, powers and functions as are provided by this Act and the regulations and such other duties and functions as the President directs"; sub-section 65(2). Section 68 provides "Where a document is required by this Act to be lodged with the Tribunal, the document shall be lodged at the office of the Registrar or of a Deputy Registrar." (emphasis added). Section 70 empowers the Governor-General to make regulations "prescribing all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act,"; sub-section 70(1). Part of sub-section 70(2) is set out:-

"Without limiting the generality of sub-section (1)-
(a) the regulations may make provision-
(i) prescribing fees to be payable in respect of
applications to the Tribunal; and
(ii) for or in relation to the refund, in whole or
in part, of fees so paid where the proceeding
terminates in a manner favourable to the
applicant; and ..."

3. The Regulations, as first made, came into operation on 1 July 1976 and did not contain any regulation prescribing fees to be payable in respect of applications to the Tribunal; Statutory Rule 1976 No. 141. Since then, the Regulations have been varied from time to time. In 1987, the Regulations were varied by inserting Regs. 19 and 20 which make provision for the payment of fees in respect of applications to the Tribunal with effect from 1 March 1987; Statutory Rule 1987 No. 23. For present purposes, it is sufficient to say that Reg. 19 provides that "a fee of $200 is payable on the lodging with the Tribunal of an application for a review of a decision" (emphasis added) other than decisions made under specified enactments. The present case does not involve a decision made under one of those enactments. Reg. 20 provides that where the prescribed fee under Reg. 19 has been paid and the proceeding terminates in a manner favourable to the applicant, the prescribed fee is to be refunded in whole to the applicant.

4. Part IV of the Act is headed "Reviews By The Tribunal of Decisions". It comprises sections 25 to 46. Those sections should be studied in detail for a proper understanding of the functioning of the Tribunal but for present purposes limited reference will be made to some of those sections. Sub-section 25(1) is a strange provision. The relevant part of that sub-section is set out:-
25(1) An enactment may provide that applications may be made to the Tribunal-

(a) for review of decisions made in the exercise of
powers conferred by that enactment; or ....."

5. In so far as enactments, including the Act and other statutes passed by the Parliament, provide that applications may be made to the Tribunal for the stated purpose the opening words of the sub-section state the obvious. It is difficult to see how, in the absence of those words, the Parliament would not have power to make an enactment to the effect that an application for review of a decision made in the exercise of powers conferred by the enactment could be made to the Tribunal. In the circumstances, the sub-section should be construed as imposing a condition precedent to the exercise of the power to review decisions conferred on the Tribunal. It should be read as if the opening words were "Where an enactment provides ...". In the present case, the relevant enactment is the Customs Act 1901 and reference will be made to that enactment later in these reasons. Sub-section 25(3) provides that where an enactment makes provision in accordance with sub-section 25(1) that enactment "shall specify the person .... to whose decisions the provision applies" and "may specify conditions subject to which applications may be made." In this context, sub-section 25(4), referred to earlier in these reasons, empowers the Tribunal to review the decision. Sub-section 25(6) provides that where an enactment provides for applications to the Tribunal, that enactment may also include provisions "adding to, excluding or modifying the operation of any of the provisions of sections ... 29 ... in relation to such applications, and those sections and sub-sections have effect subject to any provisions so included"; paragraph 25(6)(b).

6. Section 29 of the Act contains provisions relating to the method of making applications for review. Sub-section 29(1) is set out:-

"29.(1) An application to the Tribunal for a review of a
decision-
(a) shall be in writing;
(b) may be made in accordance with the prescribed
form;
(c) shall set out a statement of the reasons for the
application; and
(d) if the terms of the decision were recorded in
writing and set out in a document that was
furnished to the applicant or the decision is
deemed to be made by reason of the operation of
sub-section 25(5)- shall be lodged with the
Tribunal within the prescribed time." (emphasis
added).

7. Sub-sections 29(2) to (6) contain provisions for determining the prescribed time referred to in paragraph 29(1)(d) but have no application to the facts of this appeal. Under sub-section 29(7) the Tribunal has power, upon application in writing by a person, to extend the time for the making by that person of an application for a review of a decision and the time for making an application for a review may be extended under sub-section 29(7) although that time has expired; sub-section 29(8). Reference should be made to sub-sections 29(9) and (10) which relate to the giving of notice of an application for an extension of time. Sub-section 29(11) is set out:-

"(11) The Registrar or a Deputy Registrar shall cause
notice in writing of an application for a review
of a decision, in accordance with the prescribed
form, to be served on the person who made the
decision."

8. Apart from paragraphs 29(1)(a), (b) and (c), s.29 does not contain any express provision stating how an application to the Tribunal for a review of a decision is to be made. Paragraph 20(1)(d) prescribes a time within which an application "shall be lodged" with the Tribunal, but the times prescribed do not apply to the facts of this appeal. The Act and the Regulations seem to assume that applications for a review are to be lodged with the Tribunal. The only regulations relevant to this matter are Regulations 9, 19 and 20, the relevant parts of which are set out:- "9(1) The Registrar shall cause the date on which a

document was lodged or received at his office
to be recorded on the document."
"19(1) Subject to sub-regulation (3), 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 ..."

9. It is necessary to consider some of the provisions of the Customs Act, the enactment relevant to this appeal. Part VIII of the Customs Act contains provisions relating to the imposition of customs duty to be paid on goods imported into Australia. Section 167, which is within Part VIII, provides a method by which disputes as to the amount or rate of duty payable in respect of any goods or as to the liability of any goods to duty, can be determined by a Court. Sub-section 167(1) requires payment of the duty under protest and sub-section 167(3) provides the method of paying under protest. Where this is done, sub-section 167(2) enables the owner, within the times limited by sub-section 167(4), to bring an action in any Commonwealth or State Court of competent jurisdiction for the recovery of the whole or part of the sum paid. Under sub-section 167(4) the action must be commenced within 6 months after the payment under protest is made.

10. In 1980, a new section, s.273GA, was inserted into the Customs Act by s.28 of Act No. 110 of 1980. This section was an enactment providing that applications could be made to the Tribunal for review of decisions made under the Customs Act. Sub-section 273GA(2) provided for the review "of the demand made by the Collector" for duty which was paid under protest pursuant to s.167. The use of the word "demand" in this context was in error. The error was corrected by s.11 of Act No. 157 of 1981. Section 273GA, as now in operation, provides that as a true alternative to action under sub-section 167(2), a person who has made a payment under protest in conformity with sub-section 167(1) and (3), may make an application to the Tribunal for review of the decisions by which the duty has been imposed and payment demanded; see sub-sections 273GA(2), (6) and (7). An application may not be made to the Tribunal unless the application is made within the time specified in sub-section 167(4), namely, in the present case, within 6 months after the payment under protest is made.

11. In the present case, the appellant, pursuant to the provisions of s.167 of the Customs Act, made a payment under protest on 10 November 1986. Any action under s.167 or, as an alternative, an application to the Tribunal under s.273GA, to determine the validity of the customs duty paid under protest would need to have been commenced within 6 months after 10 November 1986, namely on or before 10 May 1987.

12. Under cover of a letter dated 31 March 1987, the solicitors for the appellant forwarded by post to the Tribunal at Melbourne an application for an extension of time for lodging an application for review of the decision to demand payment of duty and an application for review of that decision. The application for review was within time for the purposes of s.273GA but the solicitors erroneously thought that the time limitations imposed by s.29 of the Act applied. Although neither the Act nor the Regulations makes express provision for the lodging of applications for review by post, the Registry made no objection to that course. The application was received at the Registry of the Tribunal at Melbourne on 8 April 1987. It was necessary for officers of the Registry to consider the application for review to determine whether any fee was payable under reg. 19. This was done and on 14 April 1987, the district registrar returned the application for review under cover of a letter, the relevant parts of which were:-

"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."

13. Under cover of a letter dated 20 May 1987, the solicitors for the appellant forwarded by post to the Tribunal at Melbourne the application for review and the application for extension of time and enclosed the fee of $200. The documents were received at the Melbourne Registry of the Tribunal on 22 May, that is, not within 6 months after the payment under protest had been made on 10 November 1986.

14. On receipt of the application for review and the application for an extension of time, the district registrar initiated the procedures prescribed by s.29(11) of the Act. In addition, by letter dated 22 May 1987 he replied to the solicitors for the appellant as follows:-

"APPLICATION FOR REVIEW
Applicant : Angus Fire Armour (Aust) Pty Ltd
Respondent: Collector of Customs
Receipt is acknowledged of your application
for review.
Notice of your application will now be served
on the decision-maker (the respondent) as required
by the Administrative Appeals Tribunal Act 1975.
The respondent is required to furnish documents
relating to your case to the Tribunal within 28
days. These documents will then be sent to you by
the Tribunal unless there are special circumstances.
A hearing will then be held before the
Tribunal at which you may appear in person or be
represented by some other person. The attached
pamphlet sets out the general information on the
operations of the Tribunal and the procedure at the
hearing."

15. The attached pamphlet referred to the preliminary conference held pursuant to s.34 of the Act as the first hearing for the purposes of the review.

16. It is not clear what happened therafter. On 31 July 1987, a senior member of the Tribunal issued what is described as a "Direction" as follows:-

"The Tribunal, having by virtue of sub-section
273GA(5) of the Customs Act 1901, no power in
respect of this application for review, directs that
no further action be taken to list the matter for
hearing."

17. At the same time she published reasons in writing for that direction. In those reasons, she stated that she was hearing an application under s.29(7) of the Act for the extension of time for the making of the application for review. Apparently, the application for extension of time came before her by way of a telephone directions hearing. The material before her comprised the Tribunal's file and a letter from the respondent "formally opposing the application for extension of time". A Mr Turner represented the respondent. A Ms Solomons represented the appellant. In substance the Tribunal held that sub-section 273GA(5) of the Customs Act excluded the operation of sub-sections 29(2) and (7) of the Act and accordingly there was no power to grant an extension of time. The Tribunal then turned to consider whether "the letter received at the Melbourne Registry of the Tribunal on 8 April 1987, which enclosed the application, unaccompanied by the filing fee, but within the six months period, constituted a valid making of the application for review". The Tribunal held it did not and so the direction was given.

18. By notice of appeal dated 28 August 1987, the appellant appealed from the decision of the Tribunal. The questions of law set out in the notice of appeal all related to whether the application for review had been made within the time prescribed by the Customs Act. The notice of appeal did not raise the question whether the Tribunal had power to extend the time for making an application for review. The appeal was dismissed by order of the Court made on 23 December 1987. In his reasons for judgment, the trial Judge, in referring to the application for review, said:-

"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"

19. On this appeal, counsel for the appellant, initially, wanted to raise that issue, but did not pursue it. He indicated that if this appeal was dismissed, this issue might be raised in other proceedings. For present purposes, it is sufficient to say that the question of the power of the Tribunal to grant an extension of time within which an application can be made under sub-section 273GA(2) of the Customs Act has not been considered in this appeal.

20. There is no doubt that the use of appropriate words would have prevented the problem raised by this appeal. Under O.4 r.1 of the Federal Court Rules, proceedings in the original jurisdiction of the Federal Court normally are "commenced by filing an application". The Federal Court of Australia Regulations make provision for the payment of fees in respect of documents filed for the commencement of proceedings but no fees are payable with respect to certain types of proceedings. Regulation 2(3) provides that a document shall not be filed unless "the fee (if any) payable upon or in respect of the filing has been paid". Under these provisions the filing is not completed until after an officer does some act. Thus, the officer may have to determine whether the document is in a form appropriate for filing or whether a fee should be paid before filing. On facts similar to those raised by the present case, difficulties would have been avoided since the application would not have been filed since the fee had not been paid.

21. However, other difficulties have arisen where for example the appropriate initiating document together with the appropriate fee had been left at a registry within a limitation period but the appropriate officer had not filed the document until after the expiration of that limitation period. A problem of this kind arose with respect to the presentation of a petition for a sequestration order under the Bankruptcy Act 1966; see Purden Pty Ltd v Registrar in Bankruptcy (1982) 64 FLR 306. Under s.44 of the Bankruptcy Act a petition shall not be presented against a debtor unless the act of bankruptcy on which the petition is founded was committed within 6 months before the presentation of the petition. On the last day before the expiration of that time a representative of the petitioning creditor attended the relevant bankruptcy registry and "lodged", the word used by the Court at p 308, a petition and other relevant documents including a cheque for the fee to be paid for the presentation of the petition. An officer of the Registry accepted the documents and told the representative that it was not possible for the petition to be sealed and issued on that day and that it could be collected 2 days later. The issue was whether the petition had been presented within the time limitation. The trial Judge held that the petition could not be presented until filed, that filing was part of the presentation of the petition and that a petition was not filed until it had been lodged for filing in the Registry and all necessary steps required by the Bankruptcy Rules had been taken within the Registry to issue the petition. The Full Court, Bowen C.J. and Fisher and Lockhart JJ, in allowing an appeal, said at p 310:-

"In our opinion the words "presented" or
"presentation" are used in the Act, not in the sense
of the unilateral act of the creditor of showing the
petition to the appropriate court officer; but in
the sense of handing or delivering the petition to
and acceptance by that officer. The showing of the
document to the court's officer and its receipt by
him are both necessary elements in the notion of
presentation of a petition. However, what the
officer does with the document thereafter is nothing
to the point as by then it has been presented."

At p 312, the Court said:-

By merely providing that if a creditor wishes to
present a petition he may do so by filing it with a
Registrar in Bankruptcy, r.12(1) is not saying that
a petition which is handed to the counter clerk at
the relevant Registry and received by him has not
been presented, if it is not accompanied by the
note in accordance with form 6, the documents
referred to in r.12(3) or the filing fee. The act
of presentation of a petition is under the Act, not
the Bankruptcy Rules, and it affects rights and
liabilities of the petitioning creditor, other
creditors and the debtor. The act of filing the
petition under the rules, whether by presentation
or otherwise, is an act of a different character;
it is internal to the Registry. This is not to say
that the Registrar may not be entitled to refuse to
file the petition if the requirements of the
Bankruptcy Rules are not complied with; for
(3)."

22. In these passages, the Federal Court directs attention to the handing or delivering of documents to an officer and the acceptance of those documents. The words "acceptance" and "accepted" appear to be used in the sense of physical acceptance since in the last passage the Court suggests that the officer may refuse to file or to issue a document after it has been accepted.

23. In the present case, the Act provides that applications for review may be made to the Tribunal; see sub-sections 25(1) and s.29(1). See also sub-section 273GA of the Customs Act. Reference is made to s.68 of the Act and the word "lodged" used in that section. For the purpose of this case, it is inferred that the application was required to be lodged. The application was in fact posted to the Tribunal at Melbourne. It was received at the Registry at Melbourne within the time limitation. It was accepted physically. This is made clear from the letter of the district registrar of 14 April 1987. The words "filed" and "refiling" appear in the letter but technically they are inappropriate; compare Purden at pp. 310-311. More appropriate words would have been "presented" and "re-presentation" or "lodged" and "relodging". The letter makes it clear that the relevant officer in the Registry had "perused" the application and was satisfied that a "filing fee" was required.

24. The word "lodge", when used as a verb, has a number of meanings. In the Shorter Oxford Dictionary the relevant meaning is "a. To place, deposit". A number of examples are set out including "To put and leave in a place of custody or security 1666. To lodge money in the hands of a banker 1882. b. To deposit in court or with an official a formal statement of (an information, complaint, objection, etc.)". 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. Reg. 9(1) of the Regulations is consistent with this construction. In that Reg. the words "lodged or received" seem to be used in the sense of deposited and accepted.

25. As in Purden, a difference exists between the Act and the Regulations. An application to the Tribunal is made by the lodging of an application. Under Reg. 19(1) a fee is payable on the lodging with the Tribunal of applications made under certain enactments. 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. If all is in order, internal procedures apply, for example an identifying number is given to the application, and, under sub-section 29(11) of the Act, the relevant officer is required to give notice in writing of the application to the person who made the decision. The procedures required for the determination of the application for review are thus set in motion. If the officer decides that the application is not in proper form or if the required fee has not been lodged, he is not required to set in motion the procedures just described. The second passage quoted from Purden, with necessary adaptations, has equal application to the facts of this case.

26. Applying these principles to the facts of this case, it is clear that the application for review was first received at the Melbourne Registry of the Tribunal within the time limitation fixed by sub-section 273GA(5) of the Customs Act. It was accepted by an officer of the Registry. He considered that the application required a filing fee to be paid. He returned the application. On those facts, and in the light of the opinions expressed in Purden and which apply with equal force to this case, the application was lodged when accepted and should not have been returned. Unless the fee was paid, the review would not have proceeded.

27. In the result, the appeal should be allowed. It should be noted that Purden had not been referred to the trial Judge.

28. The orders that should be made are:-

1. The appeal be allowed with costs.
2. The order appealed from be set aside and in lieu
thereof the following orders made:
(a) The appeal from the Administrative Appeals
Tribunal dated 31 July 1987 be set aside;
(c) A declaration be made that the application for
review of decision forwarded under cover of the
letter of the Solicitors for the appellant to
the Administrative Appeals Tribunal and dated 31
March 1987 was an application for review under
sub-section 273GA(2) of the Customs Act 1901 and
was made within the time provided by statute;
(d) That the application for review be remitted to
the Administrative Appeals Tribunal to be heard
and decided according to law; and
(e) The respondent pay the appellant's costs of the
appeal from the Direction of the Administrative
Appeals Tribunal.

The question for determination in this appeal is whether an application for

review by the Administrative Appeals Tribunal of an administrative decision was made within six months after 10 November 1986. The appellant submits, but the respondent denies, that receipt by an officer of the Administrative Appeals Tribunal at the office of a Deputy Registrar on 8 April 1987 of a document signed by solicitors for the appellant costituted the making of such an application which satisfied the requirements of sub-section 273GA(5) of the Customs Act 1901.

2. Neither that sub-section nor any other provision of that Act indicates what act or event may be, or be taken to be, the making of such an application. The parties and the primary judge took paragraph 29(1)(a) of the Administrative Appeals Tribunal Act 1975 to be applicable to an application authorized by s.273GA of the Customs Act 1901, and therefore to require that such an application be in writing. I respectfully accept that to be correct. The parties and the primary judge also took the expression "lodge with" to specify what the Administrative Appeals Tribunal Act 1975 required to be done with the written document in order to bring about the result, required by sub-section 273GA(5) of the Customs Act 1901, that "the application is made". Paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975 does not apply to an application which is authorized by sub-section 273GA(2) of the Customs Act 1901, as the application under present consideration was. And there is no other provision of either Act which gives explicit authority for the conclusion that such an application is made by lodging the written document with the Tribunal. On the other hand, it is difficult, upon a reading of both Acts, to imagine that either Act might contemplate the making of an application authorized by sub-section 273GA(2) otherwise than by doing what is within the conception expressed by the words "lodge with". Section 68 of the Administrative Appeals Tribunal Act 1975 provides a convenient exposition, for the purposes of that Act, of the prepositional phrase "with the Tribunal", which is found in paragraph 29(1)(d) and in ss. 21(2), 37(1) and 38. And the draftsman of the Administrative Appeals Tribunal Regulations has used the expression "lodge with" repeatedly in prescribing the transmission of documents to the Tribunal : see Regulations 5(4), 10(1), 18(5). The draftsman's use of the expression in Regulation 19(1) suggests that it was his understanding that all applications for review of decisions under the Administrative Appeals Tribunal Act 1975 were to be made by the lodging with the Tribunal of the written application.

3. Regulation 19(1) provides:

"Subject to subregulation (3), a fee of $200
is payable on the lodging with the Tribunal of
an application for a review of a decision,
other than a prescribed decision."

The Full Court observed in Purden's Case (1982) 43 ALR 512 at 516, to which Sweeney and Northrop JJ. have referred, that regulations made under an Act "cannot control the construction of an Act; but they may be considered to determine 'whether they fit into the construction which I think the Act properly bears': Hales v. Bolton Leathers Ltd. (1951) AC 531, per Lord Normand at 544." I think that the Administrative Appeals Tribunal Act 1975 may be construed as contemplating that all applications to the Tribunal for a review of a decision shall be made by lodging the written application contemplated by paragraph 29(1)(a) with the Tribunal, in the sense expounded by s.68, unless by another statutory provision some other means of instituting an application has been prescribed.

4. Section 68 of the Administrative Appeals Tribunal Act 1975 provides:

"Where a document is required by this Act to
be lodged with the Tribunal, the document
shall be lodged at the office of the Registrar
or of a Deputy Registrar."

Not without some hesitation, I have reached the conclusion that s.68 requires more than getting the document into a place in an office, of the description specified in the section, where its presence is obvious to an officer carrying out duties in the office. I think that the word "lodged" in that section, like other forms of the word in other provisions of the Act, involves acceptance by such an officer of the document as well as the proffering of the document at the office. In that respect the word involves a reciprocity of action similar to that which the Full Court found to be involved in the conception expressed by the words "presented" and "presentation" in the Bankruptcy Act 1966: Purden's Case (1982) 64 FLR 306 at 310; 43 ALR 512 at 515.

5. I do not think that the receipt of a document which is involved in the conception of its lodging is achieved by merely taking hold, or taking control, of the thing. If the officer at the office counter takes up the document in order to discover, by reading words on it, what manner of document it is, he does not, in my opinion, by that action bring about the result that the document has been lodged. The acceptance which the word "lodge" contemplates is conduct which signifies that the document has been accepted by an officer of the Tribunal as a document lodged with the Tribunal. Thus, if the officer who took up the document to read it then put it behind him without comment to him who had proffered it at the counter, the document could thereupon be said to have been lodged. But if, after reading enough of the document to understand what it purported to be, the officer had put it down on the counter and had said to the person who had brought it there that it would not be accepted without the fee of $200 to which Regulation 19 refers, the document would not in my opinion be said to have been then lodged.

6. I do not think that there is anything in the reasoning of the Full Court in Purden's Case which is inconsistent with the foregoing observations. Some of the observations in that case may be thought to indicate a view that mere physical receipt constitutes the acceptance contemplated by the Full Court as involved in "presentation". But the observations were made, not only in respect of the construction of a word which could not be thought to be a synonym of "lodge", but also in the context of quite different legislation, both statutory and subordinate.

7. If the acceptance which is required to satisfy the conception of lodgement be conduct signifying acceptance, then those who choose to send documents for lodging through the post will commonly remain unaware whether lodging has been achieved until they receive some communication directed to them by an officer of the Tribunal.

8. Regulation 9 of the Administrative Appeals Tribunal Regulations provides:

"(1)The Registrar shall cause the date on
which a document was lodged or received at his
office to be recorded on the document.
(2) The Registrar shall acknowledge in
writing the receipt of an application under
sub-section 28(1B), 29(1) or 29(7) of the Act,
of an application referred to in
sub-regulation 6(1), or of a request under
sub-sections 37(1A), 41(2) or 41(3) of the Act
that is lodged in writing."

9. Section 46(1) of the Administrative Appeals Tribunal Act 1975 provides:

"When an appeal is instituted in the Federal
Court of Australia in accordance with section
44 or a question of law is referred to that
Court in accordance with section 45 -
(a) the Tribunal shall, notwithstanding
sub-section 36(2), cause to be sent to
the Court all documents that were before
the Tribunal in connexion with the
proceeding to which the appeal or
reference relates; and
(b) at the conclusion of the proceeding
before the Federal Court of Australia in
relation to the appeal or reference, the
Court shall cause the documents to be
returned to the Tribunal."

10. The written application for review received by post in the Melbourne Registry of the Tribunal on 8 April 1987 was returned to the appellant's solicitors under cover of the District Registrar's letter dated 14 April 1987, and no copy of that application was among the documents sent to this Court in compliance with s.46(1)(a). There was included in the documents sent to this Court a photostatic copy of a letter dated 31 March 1987, under cover of which the written application had reached the Registry on 8 April 1987. That copy bears the image of an imprint of a date stamp showing receipt at the Melbourne Registry on that date. If the written application were also thus stamped, the impression which that stamping might have communicated to the solicitors when the application was received back by them shortly after 14 April 1987, that the lodging of the application had been achieved, would have been contradicted, in my opinion, by the letter of that date under cover of which the Deputy Registrar had returned the application. The verbiage of the Deputy Registrar's letter was, as Northrop J. has observed, inappropriate. But I do not consider that what occurred constituted that acceptance which is required to achieve the lodging of the application. Being in my opinion free to accept for lodging, or to refuse to accept for lodging, a written application proffered without the prescribed fee, the Deputy Registrar so acted as to signify, in my opinion, that the written application had not been accepted. I am therefore of the opinion that application was not made for review of the decision within six months after 10 November 1986.

11. If the foregoing construction of the expression "lodged with the Tribunal" in the Administrative Appeals Tribunal Act 1975 be correct, it is desirable that the date on which an officer of the Tribunal accepts as lodged a document proferred for lodging be thereupon noted in the Tribunal's records, and desirable that the distinction be kept in mind between that acceptance and the physical receipt of the document. In the case of documents the receipt of which is to be acknowledged in compliance with the requirements of Regulation 9(2) it is in my opinion desirable that, if physical receipt has not, by the time the written acknowledgement is made, been followed by acceptance of the document as a document lodged with the Tribunal, the writing make that clear, so as to avoid misunderstanding.

12. I would dismiss the appeal.