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Queensland Judgments
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  • Unreported Judgment

Perryman v The Commissioner of State Revenue

 

[2016] QCAT 26

CITATION:

Perryman v The Commissioner of State Revenue [2016] QCAT 26

PARTIES:

Geoffrey Eric Perryman

(Applicant)

 

v

 

The Commissioner of State Revenue

(Respondent)

APPLICATION NUMBER:

GAR287-15

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

DELIVERED ON:

4 February 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

On the application of the Respondent the application is struck out for want of jurisdiction because it was brought out of time.

CATCHWORDS:

Application must be made by filing it in the registry – application sent by email – application processed and stamped with the Tribunal’s seal some days later

Taxation Administration Act 2001 (Qld), ss69, 149

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss33(3), 35, 36, 38(2)

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), rules 24, 31(1), 32

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    This is an application by the Commissioner of State Revenue to strike out Mr Perryman’s application to the Tribunal because it was brought out of time.
  2. [2]
    Mr Perryman asks the Tribunal to review a decision made by the Commissioner disallowing his objection to a land tax assessment.
  3. [3]
    By section 69 of the Taxation Administration Act 2001 (Qld) (‘2001 Act’ or ‘the Act’), a taxpayer may either appeal a decision made by the Commissioner to the Supreme Court or to apply to the Tribunal for its review.  Either way, this must be done within 60 days after notice is given to the taxpayer of the decision.
  4. [4]
    The decision was emailed to Mr Perryman on 14 September 2015 and by section 149 of the 2001 Act, the date when an email is sent is taken to be when it is “given”.  Mr Perryman acknowledged receipt of the decision that day by return email.  On this basis notice of the decision was given on 14 September 2015.
  5. [5]
    Accordingly, Mr Perryman had until midnight on 13 November 2015 to make his application to review.
  6. [6]
    Although Mr Perryman’s application was stamped as received by the Tribunal on 24 November 2015, which would be some 11 days out of time, Mr Perryman sent his application to the Tribunal’s generic email address by an email at 8.20pm on 13 November 2015.  This was a Friday.  An automatic response by the Tribunal system was generated and this was sent back to him just four minutes later at 8.24pm.  That automated email explained:-

Your enquiry will be answered as soon as possible.  While our service standard is to reply to correspondence within 7 working days, the number of requests for information may result in unexpected delays.

  1. [7]
    Mr Perryman’s application was processed by the Tribunal on 24 November 2015, which was the seventh working day after he sent it.  It was stamped on that day using the Tribunal’s seal.  He was then sent sealed copies to his postal address in Indonesia for him to serve on the Commissioner, and he was asked to pay the application fee.  The Tribunal sent him an email acknowledging receipt of his application and informing him what was being sent to him by post.
  2. [8]
    Expressly by the terms of section 69(3) of the Act, the Tribunal cannot enlarge the time for an application for review, so if the application was out of time it must be struck out.  This is because the Tribunal will have no jurisdiction to hear it.

When was the application made?

  1. [9]
    Section 69 of the Act expressly states that the application to the Tribunal must be made (in the time allowed) ‘as provided under the QCAT Act’.  This is a reference to the Queensland Civil and Administrative Tribunal Act 2009.
  2. [10]
    Section 33(3) of the QCAT Act sets out how applications for the review of a reviewable decision[1] must be made.  It provides that an application of that type must be made by “filing it in the registry”.
  3. [11]
    Rule 24 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) permits applications to be filed in person, by post, or by fax.   Only where there is an application for which a fee is not payable (which is not the case here) can the application be filed by email.
  4. [12]
    Rule 31(1) of the QCAT Rules describes when a document is filed.  It is provided that a document is filed when the registrar records the document and stamps the Tribunal seal on it.  This is what was done on 24 November 2015.
  5. [13]
    Section 36 of the QCAT Act provides that a proceeding does not start until it is accepted by the registrar.
  6. [14]
    Section 38(2) of the QCAT Act provides that the Tribunal must not take any action on an application until the fee is paid.
  7. [15]
    It is clear from the rules that an application sent by email is not filed in the registry until it is recorded and stamped.  This is demonstrated by Rule 32 which permits the registrar to refuse to file a document if it does not comply with the rules or cannot be filed.  Section 35 of the QCAT Act also permits the registrar to reject an application on various grounds.  This could have happened here because strictly, Mr Perryman’s application did not comply with Rule 24 because it was sent by email and also the fee had not been paid, so that under section 38(2) the registrar could have refused to stamp it at all.  This shows therefore that filing is not an automatic process which can happen on receipt of an email. Some consideration and processing of the document is required before it is filed in the registry.
  8. [16]
    Whilst Mr Perryman asks the Tribunal to take into account that he is living overseas and that email was a practical means for him to use, the answer to the obvious difficulties he faced in getting the application for review before the Tribunal was to start this process earlier than he did.  He also makes the point that it was alright for the Commissioner to inform him of the decision by email so he ought to be permitted to apply for a review by email.  However, as it turned out, the Tribunal did accept his application by email.

Conclusion

  1. [17]
    The application was made on 24 November 2015.  It was out of time and the Tribunal is unable to enlarge time to enable it to be heard.
  2. [18]
    The application must be struck out because the Tribunal has no jurisdiction to hear it.

Footnotes

[1] which this decision is - “reviewable decision” being defined in section 17 of the QCAT Act.

Close

Editorial Notes

  • Published Case Name:

    Geoffrey Eric Perryman v The Commissioner of State Revenue

  • Shortened Case Name:

    Perryman v The Commissioner of State Revenue

  • MNC:

    [2016] QCAT 26

  • Court:

    QCAT

  • Judge(s):

    Member Gordon

  • Date:

    04 Feb 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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