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Tuesday, August 30, 2011

Confirmation: fifty cents a mere trifle

 "The law does not concern itself with trifling matters" certainly doesn't appear at the bottom of those lawyers' invoices detailing chargeable hours, much as the client might hope, but the notion surfaces in the courts from time to time- as "de minimis non curat lex" of course. Tribunal Member Norton in a Freedom of Information case in the Victorian Civil and Administrative Tribunal had resort to this maxim, and the principles of statutory interpretation, in ruling that an application in which the applicant had underpaid the FOI  fee by fifty cents was nevertheless a valid application.


In Keating and La Trobe University [2011] VCAT 164) Mr Keating had sent a cheque with an application to the university for $23.40, instead of $23.90, the amount specified in the act and regulations.Ten days after the application was received, the University wrote confirming receipt of the request and that it had "chosen to waive the balance of the fee in this case." The applicant subsequently sought review by the tribunal on the basis of a deemed refusal of the request, 45 days having passed since the application was received by the University. The University argued the tribunal had no jurisdiction because no valid request was received until the full fee was paid, waived or reduced.
Section 17 of the act stipulates a request must be accompanied by a fee of 2 fee units ($23.90). Section 21 requires an agency to notify a decision "not later than 45 days after the day on which the request is received.." Section 53 deems the request refused once the time limit expires. Section 50 provides for an application to the tribunal in these circumstances.

Tribunal Member Norton concluded on the basis of the authorities and the objects of the act that the imputed intention of Parliament, and de minimis non curat lex meant the request was valid from the time received, despite the fifty cent shortfall..
36... I impute to Parliament the intention that where a person mistakenly pays the application fee as it applied in the previous financial year, this is to be regarded as substantial compliance with section 17(2A) which will be sufficient to meet the precondition that the fee must be paid, at least where the increase from one year to the next is a small one such as 50 cents.
37... mistakenly underpaying an application fee by 50 cents is not an act done in breach of section 17(2A) that should lead to invalidity. 
38...I determine the legislature intended that validity of Mr Keating's request would be preserved notwithstanding non-compliance in terms of the 50 cent underpayment. 
39. In the alternative, and as Pearce and Geddes observe as a variation on the above interpretive approach, in my view the maxim de minimis non curat lex applies as a rule of interpretation with respect to section 17(2A). In the context in which the fact of the 50 cent shortfall has to be considered, the de minimis exception should apply. 
40. I take into account that the shortfall is 50 cents out of $23.90 or 2% of the correct fee. I note that Hill J in Farnell decided that the inclusion of 81 out of 40,000 items in a catalogue (0.2%) did not attract the application of the principle. However, the context of interpreting the word, “exclusively" in a taxation act is a world apart from the context of interpretation within the FOI Act. The Customs Tariff Act 1987 does not have a provision exhorting the interpreter to advance the rights of the taxpayer.
You might be thinking La Trobe was petty in arguing the point. Tribunal Member Norton thought otherwise suggesting Mr Keating's lawyers might have avoided all this by showing a little courtesy to the other side:
41. In reaching the above conclusion, I make no criticism of La Trobe. It did the right thing. It received an application, noted the fee was 50 cents short and promptly (10 days in the January holiday season) took the sensible action of advising Mr Keating that it would not ask the payment of the amount. In my view in reality it was exercising a de minimis approach.
42. I understand why La Trobe, in the context of the principle that unless the fee is paid or waived, took the view the 45 days therefore began to run from 24 January 2011 when it decided to "waive" the fee.
43. With the benefit of hindsight, the issues before me would presumably have been avoided if La Trobe had advised Mr Keating in the 24 January letter of its view that the 45 days ran from then. However, I do not say it should have done so...
46. Finally, I observe that while, in no sense required to under the FOI Act, the matter before me would never have arisen had Mr Keating’s solicitors taken the simple step of advising La Trobe that their client intended to make an application to VCAT on the basis of a deemed refusal, within say seven days, unless a decision was made. La Trobe would have presumably advised of its view on the 45 days. I assume Mr Keating would have waited.
47. I need not expand on the benefits to all concerned of offering such a courtesy to the respondent.

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