Services / Administrative cases
Administrative contracts: five years to sue
The first question in a dispute with a state agency is not who breached the contract but whether the contract is an administrative one or a civil one, because the answer changes both which court hears it and how much time is left.
Jurisdiction sits in section 9(1)(4)
Section 9, first paragraph, subsection (4) of the Establishment of Administrative Courts and Administrative Court Procedure Act B.E. 2542 (1999) gives the Administrative Court jurisdiction over disputes concerning administrative contracts. Classifying the contract is therefore the question to settle before any other, and the Act's own explanatory note acknowledges that the administrative contract is a newer concept over whose proper meaning even lawyers still argue.
Five years, no longer one
Section 51 provides that proceedings under section 9(1)(3) are to be filed within one year, and proceedings under section 9(1)(4) within five years, from the day the cause of action was known or ought to have been known, but not more than ten years from the day it arose. The five years for contract cases came in by amendment, so material written earlier still gives the one-year period.
The amendment's own account of the problem
The explanatory note sets the history out plainly: proceedings under section 9(1)(4) formerly had to be filed within one year, while such contracts carried a ten-year prescription under the Civil and Commercial Code. Once a contract was interpreted as an administrative one, the period available collapsed to a year by operation of law, and it was thought right to lengthen it. That passage shows where the risk actually lies — in the classification itself.
An order must state how and when to sue
Section 50 requires that where an order may be challenged in the Administrative Court, the issuer must state in it how and within what period to file. If it later appears that this was not done, the issuer must give that information without delay, and the filing period starts afresh from the day the recipient receives it. Where no fresh notice is given and the period is less than one year, it is extended to one year from receipt of the order.
Out of time, and still not necessarily out
Section 52 provides two layers of exception. Its first paragraph states that proceedings concerning the protection of the public interest or a person's status may be filed at any time. Its second states that where proceedings are filed out of time, the court may nonetheless accept them if it considers the case would benefit the public at large or that there is other necessity, whether on its own view or on a party's application.
PREPARE
What to bring
- The signed contract and all its annexes
- What the contract is for, and any public service involved
- When the cause of action became known or knowable
- Any agency order, and what it said about how and when to sue
- The correspondence and negotiations to date
QUESTIONS
Questions this raises
I am not sure whether it is an administrative or a civil contract.
That uncertainty is common enough that the Act's own explanatory note speaks to it. The classification affects both which court has jurisdiction and how long remains. The safer course is to work the deadline from the shorter of the possibilities first and consider the jurisdictional question after, since waiting for the classification to be settled can consume the period in the meantime.
The order I received said nothing about a deadline.
Section 50 places that duty on the issuer of the order and attaches two consequences. If the information is given later, the filing period starts afresh from the day it is received; and if no such notice is ever given and the period is less than a year, it is extended to one year from receipt of the order. Keeping the order itself in full therefore bears directly on the calculation.
LAW
The legislation
- Administrative Court Procedure Act B.E. 2542 (1999), section 9
- Administrative Court Procedure Act B.E. 2542 (1999), section 50
- Administrative Court Procedure Act B.E. 2542 (1999), section 51
- Administrative Court Procedure Act B.E. 2542 (1999), section 52
ENQUIRIES
