1. The applicant put into evidence at the hearing the application for review and attached documents, and an affidavit (incorporating submissions) he had sworn on 29 January 2013. The applicant gave evidence, and both he and his partner made oral submissions to the Tribunal.
2. The respondent relied on affidavits of Mr Bryant, the delegate of the respondent, and Mr Moore, the acting Mailroom Team Leader responsible for the internal mail procedures for the respondent. Both gave evidence at the hearing. The respondent's Counsel made oral submissions and also relied upon written submissions filed 20 February 2013 and 12 March 2013.
3. Mr Peden gave evidence that at the time of the assessment he and his partner resided in Bywong and had a mailbox on Bungendore Road. His hours of work were irregular, and his process for collection of the mail was a little unreliable, but would have involved collection of the mail every second day at least. He thought that he had received the notice of reviewable decision and reasons for decision on 24 July 2013, although he had no clear memory of that date. His evidence as to this date seemed to be based on his 'best estimate' rather than a real recollection.
4. In relation to the delay in filing the application for review, the applicant's affidavit suggested that this was due to the time taken to locate the original documentation from purchase of the property, and in particular the Residential Land Tax notification form of 2003. However, in evidence the applicant referred to delay caused due to the busyness of his and his partner's lives at that time caused by selling the house in Bywong and moving to O'Malley, having 5 children and running small businesses.
5. Mr Bryant on behalf of the respondent gave evidence as to the process he followed in documenting his decision to refuse the applicant's objection to the assessment. He gave evidence that on 6 July 2012 in accordance with his usual practice he finalised the reasons for decision and reviewable decision notice, printed these and signed them, and then scanned the signed copies. The hard copies were then put in an envelope, addressed by him, and placed in the out-tray for collection by mail services. He confirmed that he was not aware of any difficulties with the outgoing mail over the relevant period. He gave evidence that he has subsequently checked the pdf copies of these documents, and this confirmed that these were scanned at approximately 3:22 pm on 6 July 2012.
6. Mr Moore, the acting Mailroom Team Leader for ACT Government mail services, also gave evidence. He explained that it is the usual practice for mail to be collected from the ACT Revenue Office twice per day (morning and afternoon) and the collected mail is delivered to the Directorate's Mitchell mailroom where it is sorted, and collected by Australia Post at 5:00 pm to be delivered to the Fyshwick mail facility that day. Mr Moore explained that mail collected on the afternoon run will ordinarily be ready for collection by Australia Post at 5:00 pm. He gave evidence that it would be very unusual for mail to not make the 5:00 pm collection, and if this occurred it would certainly be collected by Australia Post the next day. He was not aware of any disturbances or delays in the mail processing at the relevant time. Mr Moore attached to his affidavit the Post Guide, which provides on page 11 the time frames for postal deliveries. He also gave evidence of having discussed this issue with his local post office, and having been advised that ordinary post should reach Bywong from Canberra on the second business day after posting.
7. In submissions, Mr Peden submitted that the ACT Revenue Office should take some responsibility for his failure to pay land tax, as it had failed to chase him up in the 10 years since he notified his intention to rent the property. He felt that the decision to impose penalty tax at a rate of 50% was not in accordance with the legislation, in that he had a reasonable excuse for the failure to pay land tax provided by the inadequate follow-up by the ACT Revenue Office, and the combined failures of his accountant and property manager to draw the matter to his attention. Ms Dickson stated that neither she or the applicant were aware of the time frame for lodging the application for review, and they did not feel that the right to a review of the substance of the matter should be excluded by rigid time limitations. In his written submissions Mr Peden also suggested that his recent discovery of the notification form of 1 October 2003 was 'fresh evidence' that had not been before the respondent and that in accordance with the right to fair trial under s.21 of the Human Rights Act 2004 it would be unlawful for the ACAT to refuse the request for review.
8. On behalf of the respondent, Mr Bayliss submitted that the Tribunal should find that it was not possible for the Tribunal to extend time sufficiently that the application for review would have been filed within time, and even if this were possible, the discretion to extend time should not be granted.

The relevant law and the questions to be addressed

1. Section 10 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides the general requirements for making an application to the ACAT:
   1. Making an application

(b) be in writing, whether with or without a registrar's help; and

(c) state the reasons for making the application; and

Note 1 If a form is approved under s 117 for an application, the form must be used.

Note 2 A fee may be determined under the Court Procedures Act 2004, s 13 for this provision.

(2) An application to the tribunal for review of a decision must be made by a person within 28 days after the day the decision to be reviewed is made.

Note The rules may prescribe a longer period for making the application (see s 25 (1) (e) and (2)).

(a) if notice of the decision is given to the person later than 5 days after the day the decision is made - the application may be made within 28 days after the day the notice is given; and

(b) if notice of the decision is required to be given to the person under this Act or an authorising law, but is not given - the application may be made within 28 days after the day the person becomes aware of the decision; and

(c) if the decision is taken to have been made under section 12 (When no action taken to be decision) - the application may be made within 28 days after the end of the period or reasonable period mentioned in the section.

1. Relevantly for the current matter, subsection 10(2) provides the application for review must be made within 28 days after the day the decision to be reviewed is made. However, if notice of the decision is given to the person later than 5 days after the day the decision is made then the 28 day time frame will commence after the day the notice is given.
2. Rule 7 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (ACAT Rules) provides for an extension of time for making an application to the ACAT:
   1. Extension of time for making application

(1) This rule applies to an application to the tribunal for review of a decision under the Act, section 10 or an authorising law.

(a) extend the time for making the application by up to 28 days; and

(b) further extend the time for 1 additional period of up to 28 days.

Note 1 If a form is approved under the Act, s 117 for this provision, the form must be used.

Note 2 An application for extension of time may be made even though the time to be extended has already ended (see Legislation Act, s 151C).

(3) If requested by the tribunal, the applicant must give written notice to a person whose interests the tribunal considers could be affected by the decision.

(4) The tribunal may make an order under subrule (2) only if satisfied that there are reasonable grounds for making the order.

(5) To remove any doubt, this rule applies to a decision made before the commencement of this rule.

1. It can be seen at the outset that there is an issue in this matter as to whether the ACAT, having provision to extend time by no more than 56 days, has the power to sufficiently extend the time for filing the application for review. It is necessary to determine with some degree of certainty the date notice was given, and the date the application for review was filed.
2. When it comes to matters such as counting the time for giving notice, or doing things such as filing an application, provisions of the Legislation Act 2001 (Legislation Act) can be relevant.
3. In relation to calculating the time within which things are done, section 151 of the Legislation Act provides for the working out of periods of time of 1 day or longer.
4. Part 19.5 of the Legislation Act deals with service of documents. Section 245 provides that the part applies where documents are required by law to be served, whether the word 'serve', 'give', 'notify', 'send' or 'tell' or any other word is used. Section 247 of the Legislation Act provides that such a document may be served on an individual by sending it by prepaid post addressed to the individual at their home address, and section 250(1) 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:
   1. When document taken to be served

(1) A document served by post under this part is taken to be served when the document would have been delivered in the ordinary course of post.

(2) However, subsection (1) does not affect the operation of the Evidence Act 2011, section 160 (Postal articles).

Note The Evidence Act 2011, s 160 provides a rebuttable presumption that a postal article sent by prepaid post addressed to a person at an address in Australia or an external territory was received on the 4th working day after posting.

(3) If the sender has no reason to suspect that a document served by fax or email under this part was not received by the recipient when sent, the document is presumed to be served when sent unless evidence sufficient to raise doubt about the presumption is given.

_(4) For subsection (3), the sender has reason to suspect that a document served by fax or email under this part was not received by the recipient when sent only if, on the day the document was sent or on the next working day, the equipment the sender used to send the document indicated by way of a signal or other message that - _

(a) the equipment did not send the document when the equipment was used to send the document; or

(b) for a fax - the number to which the fax was sent to the recipient was not a fax number of the recipient; or

(c) for an email - the address to which the email was sent was not an email address of the recipient.

(5) A document addressed to the recipient, and left for the recipient as mentioned in section 247 (e), section 248 (e) or section 249 (e), is taken to be served when it was left.

recipient, for a document, means the individual, corporation or agency on whom the document is intended to be served.

sender, for a document served, or to be served, by fax or email, means the person sending, or seeking to send, the document.

1. With these provisions in mind, I turn to determining the questions of:
   • the date on which notice of the reviewable decision was given;
   • the date by which the application for review was required to be filed;
   • the date on which the application for review was filed;
   • the length of time for which an extension of time for filing the application for review may be granted; and
   • if it is possible, whether an extension of time should be granted.

1. The date that is to be determined for this question is not the date that the applicant opened the letter notifying him of the decision, but the date that notice of the decision was 'given'.
2. The parties approached this issue on the basis that section 250 of the Legislation Act alone applied to the giving of notice of the decision on internal review. Section 250 of the Legislation Act only applies to a document served by post 'under' Part 19.5. In the current case, the requirement to give notice of the decision on internal review arises under section 108 of the Taxation Administration Act 1999 (TAA Act). Section 129 of the TAA provides that a document required to be given by the Commissioner to a person, for a tax law, may be given personally, by post, or by other specified methods. The first authority for service of the notice by post in the current matter, therefore, is section 129 of the TAA.
3. The TAA does not provide for when a notice so served is deemed to have been given. If this were the only statutory provision applicable it would be necessary for the Tribunal hearing a matter in which the time of service is relevant to make a finding as to when the notice had been 'given'.
4. However, it can be argued that section 129 of the TAA and section 250 of the Legislation Act operate concurrently, and in this case both provide authority for service of the notice by post (see section 6(6) of the Legislation Act). If that is accepted, then section 250(1) of the Legislation Act provides that notice is taken to be given when the document would have been delivered in the ordinary course of post. Is this deeming provision irrefutable?
5. Unlike postal service provisions in other legislation, section 250(1) of the Legislation Act is not expressed as being rebuttable by evidence. This was noted, but not determined, most recently by Refshauge J in GR8 Constructions Pty Limited v Carol Ann O'Donnell & Ors [2011] ACTSC 92 at paragraphs 11 and 12. There is no other judicial authority I have been able to locate, or that the parties referred to, on the question of whether section 250(1) provides a rebuttable presumption or is irrefutable.
6. The previous approach of the Tribunal to this issue has been to interpret section 250 of the Legislation Act as providing a rebuttable presumption as to time of service, notwithstanding that this is not express (see for example Dimov and ACT Planning & Land Authority & Anor [2006] ACTAAT 26). This requires the implication of words into the section, a permissible step in statutory interpretation where the necessary words have been omitted by oversight.
7. Section 250 was one of a number of provisions inserted into the Legislation Act in 2001, at the same time that corresponding provisions of the Interpretation Act 1967 (Interpretation Act) were repealed. The explanatory statement and the text of the legislation indicated that section 250, which provides for time of service by post, fax and email, was to replace and expand upon section 18 of the Interpretation Act. Section 18 of the Interpretation Act at the time of repeal provided for a rebuttable presumption as to time of service by post:

Where an Act authorises or requires a document to be served by post, whether the expression 'serve' or the expression 'give' or 'send' or any other expression is used, the service shall be deemed to be effected by properly addressing and posting (under prepaid post) the document as a letter, and, unless the contrary is proved, to have been effected at the time at which the letter would have been delivered in the ordinary course of post.

1. The notes to the insertion of section 250 into the Legislation Act noted:

For s 250 When service taken to be effected

For legal and administrative purposes it is necessary to know that a document required to be given to a person has in fact been given or served, and the time of service. A person who gives a document to another is able to verify the date and time of service. If a document is served by post, however, the date and time of delivery cannot be known with the same precision. Because of this, the rule that has applied for many years is that the document is taken to have been served when the document would have been delivered 'in the ordinary course of post' (meaning the time that would ordinarily be taken to deliver an article through the post to the particular address). This rule is reflected in section 250 (1) which reproduces the effect of the Interpretation Act 1967, section 18. However, section 160 of the Evidence Act 1995 (Cwlth) affects the calculation of the date of service and its effect is noted to section 250 (2). Sections 250 (3) and (4) lay down analogous rules for determining when a fax or email is to be regarded as served. Section 250 (3) creates a rebuttable presumption that a fax or email is received when it is sent.

1. If the legislature had intended to radically depart from the operation of section 18, which reflected the accepted statutory approach to postal service provisions, one would expect that the explanatory statements or notes to the Legislation Act would have canvassed the issue. They do not. On the contrary, these indicate an intention to replicate the rebuttable presumption previously contained in section 18 of the Interpretation Act, while acknowledging that in proceedings in which the Evidence Act applied, a different calculation method would apply.
2. I consider therefore that it is appropriate to interpret section 250 as operating as a rebuttable presumption as to the time of service. This means it would be open to the Tribunal, when faced with persuasive evidence of non-delivery on the deemed date, to find that notice has not been given, or has been given on a different date. I turn then to a consideration of the evidence as to date of delivery, in this case.
3. The combined evidence of Mr Bryant and Mr Moore would suggest that, even on the worst case scenario of the mail being collected from ACT Revenue Office on the morning of Monday 9 July 2012, which seems to me likely given the late time of scanning of the documents, it would still have been collected by Australia Post on the afternoon of 9 July 2012. This means, on my interpretation of the Post Guide[1], the notice would have been delivered to the Bungendore Road mailbox on Thursday 12 July 2012. That is almost two weeks earlier than Mr Peden thinks he opened the letter.
4. Mr Peden gave evidence that he thinks he received the notice of the decision on 24 July 2012. This is his best estimation, rather than a direct memory. He acknowledges that his processes for collection of the mail could be irregular, however he did not think that the letter could have been left in the car, or on a bench or bookshelf, or for some other reason unopened for a period of time. On the other hand, his evidence also was that both he and his partner were so busy at the time, arranging sale of a house, running two businesses, and having five children, that they either overlooked or did not understand the time frame stated in the notice for lodging an application for a review.
5. Mr Peden did not impress as a reliable witness in relation to matters of paperwork, dates or detail. The history of the proceedings and the events leading up to the litigation paint a picture of a person who is at best uninformed and disorganised and at worst, simply untruthful. It is not necessary in the current matter to determine what is the more accurate characterisation. It is enough to note that I found the applicant's evidence to be unreliable in matters of detail. Consequently, where the evidence of the applicant conflicted with that of other witnesses, or inferences that could reasonably be drawn from their evidence, I preferred the evidence of the other witnesses.
6. I accept the evidence of Mr Bryant and Mr Moore. I am comfortably satisfied that notice of the decision was given to the applicant on Thursday 12 July 2013, which is when it would have been delivered in the ordinary course of post.

When was the application for review required to be filed by?

1. Section 10(3)(a) of the ACAT Act applies when notice of a decision is given later than 5 days after the decision is made. The word 'days' in this provision has its ordinary meaning, and is not limited to working or business days. In the current matter notice of the decision was given 6 days after the making of the decision, and subsection 10(3) applies to provide that the relevant time period for filing the application for review was 28 days after the day the decision was given.
2. Applying subsection 151(3) of the Legislation Act, to exclude Thursday 12 July 2012, this means that the last day for filing the application for review was Thursday 9 August 2012.

When was the application filed in this matter?

1. The application for review was received by the ACAT on 17 October 2013.
2. The applicant asserted that the application for review was posted within Canberra on Friday 12 October. This was not disputed. The applicant submitted that the postal service rule should apply, such that the posting of the application is analogous to acceptance of an offer by post. The respondent, in my view correctly, submitted that the postal service rule as a principle of the law of contract has no application to the filing of an application at the ACAT or indeed at any court.
3. Of more arguable relevance are the provisions of Part 19.5 of the Legislation Act which I have noted above provide for the giving or serving of documents. If these provisions applied to filing by post, then the substantive application would be deemed to have been received on Monday 15 October 2012, subject to satisfactory evidence to the contrary.
4. After some consideration, I do not think that Part 19.5 of the Legislation Act 2001 applies to the 'filing' of an application with the Tribunal. The act of 'filing' engages the processes of the relevant court or tribunal in a way that is qualitatively different to the mere 'giving' or 'serving' of a document. This distinction is important. When one considers the content of Part 19.5, the provisions of section 249 in relation to service upon an agency, and the later provisions of sections 251 and 252, it can be seen that the requirements of Part 19.5 are not apt to the institution of legal proceedings.
5. In the absence of specific provision in the ACAT Rules or ACAT Procedural Directions, whether an application is filed by post, by fax or by email, the time of filing is the time the application is received by the ACAT.
6. Even if section 250 of the Legislation Act did apply to filing the application by post, it would do no more than provide a presumption which is rebutted by the unchallenged evidence of receipt by ACAT on 17 October 2012.
7. The respondent further submitted that the application should not be taken to have been lodged with the ACAT (in accordance with section 10 of the ACAT Act) until the filing fee was paid, in this case on 9 November 2012.
8. The requirement to pay a fee at the time of filing is not contained in section 10 of the ACAT Act. Paragraph 6.3 of the ACAT Procedural Directions requires that any fee payable in relation to an application be paid at the time the application is filed, however these are expressed to be directions of general application, and the Tribunal may decide that a different procedure may be followed in particular matters.
9. Section 57 of the Legislation Act provides that where a fee is payable for a service no service need be provided until the fee is paid. This provides a statutory basis for refusing to provide a service (ie. not processing or hearing an application), but does not in its terms state that in such cases it is deemed that no request for a service has been made (ie. no application has been filed).
10. There is no legislative provision to the effect that an application is taken not to have been filed until the requisite fee has been paid. Consequently, I am not persuaded that a failure to pay the determined fee at the time of the filing of an application with the ACAT means that no application has been filed.
11. In summary then, I am satisfied that the application in these proceedings was filed on 17 October 2012. Is it possible for an extension of time to 17 October 2012 to be made in this case?

1. Rule 7 of the ACAT Rules provides that two extensions of time, each of 28 days, may be granted. That would be, to 6 September and then 4 October, respectively. This is clearly insufficient in the current case. Is there another power to extend time which is not so limited?
2. Rule 7 is the only provision in the ACAT legislation expressly dealing with the extension of time to file an application. The power to make this rule is provided by section 24(1)(e) of the ACAT Act. Elsewhere the ACAT Act provides the ACAT with a broad array of powers in relation to applications that have been filed, but Rule 7, made under the authority of section 24(1)(e), is the only statutory provision for extending time for filing an application.
3. I am not satisfied that the ACAT has any power to extend time for filing an application for review, other than the power expressed in Rule 7.

If there were the power to extend time sufficiently, should it be exercised?

1. Even if it was possible to extend the period of time for filing an application for a sufficient period in this matter, whether because an unlimited power to do so exists, or because the arguments of the applicant as to the date of receipt of the notice, and time of filing by post were accepted, I do not consider that such an extension of time should be granted.
2. The relevant test for determining an application for extension of time is clearly set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. It is not necessary to replicate the relevant passage in these reasons.
3. Briefly applying the factors set out in that case that are critical for the current matter, I would first note that I do not consider the applicant's explanations for his delay in filing the application for review to be reasonable. The first explanation given appears to be a combination of the busyness of life with a large family, the moving of house, and running of a business. These are not uncommon events in modern life. These matters of themselves do not provide a reasonable explanation for a delay of months in filing an application. The other explanation given for delay was the late discovery or time taken to locate the notification form of 1 October 2003. This issue is a red herring. The existence of that form, and provision of it to the respondent on 1 October 2003, was acknowledged in the first page of the respondent's reasons for decision. The form is not fresh evidence, and the recent location of a copy is of no legal consequence.
4. Further, I do not consider the substantive application is of sufficient merit that the applicant should be granted an extension of time. In the application for review, the applicant asks the ACAT to conclude that he should not pay penalty tax at a rate of 50%, either because reasonable care was taken by the applicant by the lodging of the form on 1 October 2003, or because the failure to pay land tax occurred with reasonable excuse either due to the failure of the ACT Revenue Office to chase up the applicant, or the applicant's reliance on other professionals.
5. Given the approach of the Tribunal in previous matters involving review of penalty tax in relation to unpaid land tax, it is difficult to see how these arguments have any prospect of success.
6. The lodging of the form on 1 October 2003, prior to the entering into of a rental agreement, cannot constitute compliance with the legal obligation under section 14 of the Land Tax Act to notify the Commissioner that the land is rented, and when the rental began. This obligation arises only after a rental agreement is entered into. There was no legal or other obligation upon the ACT Revenue Office to pursue the applicant for further information after the lodging of that form. The employment of other professionals does not absolve a tax payer of their personal responsibility to comply with the tax laws and neither constitutes the taking of reasonable care, or a reasonable excuse for non-compliance.
7. Similar arguments have been unsuccessful when raised before the Tribunal in previous matters, by less experienced or knowledgeable persons (see for example Jokhan & Jokhan v Commissioner for ACT Revenue [2012] ACAT 15; Steele v Commissioner for ACT Revenue [2010] ACAT 15). It is difficult to see how these arguments would be accepted by the Tribunal when raised by the applicant, given his professional and personal circumstances.

1. The decision in this matter was made on 6 July 2012 and notice of that decision was given on 12 July 2012. Any application for review of that decision should have been filed by 9 August 2012. It was not. The Tribunal has power to extend the time for filing of an application for review for a maximum of 56 days, to 4 October 2012. The application for review was filed on 17 October 2012, when it was received by the Tribunal. It follows that the Tribunal does not have power to extend time for the period necessary in this matter.
2. Even if the Tribunal did have power to sufficiently extend the period for filing the application for review, it would not be appropriate to exercise that power in the circumstances of this case.
3. Accordingly, the application for an extension of time is refused.

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[1] While the applicant suggested that I apply the time frame for service within the same regional city or town and environs, for towns that are located in different states but share a State boundary, I do not think this is a correct application of the Guide to the facts of this case. Unlike Canberra/Queanbeyan and Albury/Wodonga, which are cited as examples in the Post Guide, Canberra and Bywong are not co-located on either side of the State boundary. The appropriate time frame is that for delivery between a State capital city and a country location, outside the State, which is the third business day after lodgement.