Services / Administrative cases
Revoking an administrative order: ninety days
Two clocks run at once in administrative matters: fifteen days for the internal appeal and ninety for the court. People who wait until they are sure they want to fight have usually passed the first already.
Ninety days from what
Section 49 of the Act on Establishment of Administrative Courts and Administrative Court Procedure B.E. 2542 (1999) requires a case to be filed within ninety days of the day the applicant knew or ought to have known of the ground of complaint. The starting point is therefore not the date of the order but the date of knowledge, usually the day it was served, and the words ought to have known mean that not opening the envelope is no answer.
Where the agency stays silent
Section 49 provides a second route: time may run from the expiry of ninety days after the applicant wrote to the agency or official asking them to perform a duty imposed by law, without receiving a reply, or having received one the applicant considers unreasoned. That route covers inaction or silence, as distinct from an order that has actually been made.
The internal appeal comes first
Section 49 ends with the words unless a specific law provides otherwise, and one such is section 44 of the Administrative Procedure Act B.E. 2539 (1996): where the order was not made by a minister and no special appeal route is prescribed, the party must appeal to the official who made it within fifteen days of being notified. The appeal must be in writing, setting out the objections and the facts or law relied on.
The order still bites while the appeal runs
The second paragraph of section 44 states plainly that an appeal does not stay execution of the order unless a stay is granted. Anyone assuming that lodging an appeal freezes matters is mistaken, and where the order has immediate effect, such as suspending an activity or requiring payment, a stay is a separate application that should be made at the same time.
Reopening after the appeal period
Section 54 of the same Act allows an official, on the party's application, to revoke or amend an order after the appeal period has passed, where for instance new evidence may materially change facts previously treated as settled, the true party never took part in the proceedings, or the official had no power to make the order. The application must be made within ninety days of learning of the ground.
PREPARE
What to bring
- The order as received, with the envelope and date of receipt
- Whatever the agency relied on, so far as it was given to you
- Any objection or appeal already lodged
- Evidence of the harm the order causes
- Any licence or entitlement affected
QUESTIONS
Questions this raises
The order came three months ago. Is anything still possible?
Two tracks have to be separated. The first is the fifteen-day appeal under section 44, which has probably passed. The second is the ninety days to file under section 49, which runs from knowledge of the ground. Section 54 also allows an application to the official to reconsider on specified grounds, within ninety days of learning of them. The dates on all the documents are worth checking before concluding anything.
I have appealed. Do I have to comply meanwhile?
The second paragraph of section 44 provides that an appeal does not stay execution unless a stay is granted, so the order remains in force while the appeal is considered. Where complying would cause harm that is hard to undo, an application for a stay should be pursued alongside rather than simply waiting for the appeal outcome.
LAW
The legislation
- Act on Establishment of Administrative Courts and Administrative Court Procedure B.E. 2542 (1999), section 49
- Administrative Procedure Act B.E. 2539 (1996), sections 44 and 54
ENQUIRIES
