VwGH: Lawyer Deadline Duties

Apr 28, 2023 Benn-Ibler Rechtsanwälte

The Austrian Administrative Court (Verwaltungsgerichtshof, VwGH) has clarified its case law on the question of to what degree faulty deadline calculations by lawyers allow for a case’s restitution in integrum.

In the original proceedings, fines had been imposed on the secondary party to the proceedings for various administrative offences. The public authority rejected the party’s appeal due to its having been filed after the deadline, whereupon he filed an application for restitutio in integrum after failure to meet the appeal deadline.

The grounds for the application were essentially given by the secondary party as follows: A staff member from his legal representative's office had tracked the penalty order to verify the date of delivery and had found that the penalty order had been available for pick-up at the local post office on 6 October 2021 and had been picked up on 11 October 2021. From 6 to 8 October 2021, the secondary party had been out of town, which is why the law-office employee recorded 11 October 2021 as the date of pick-up (9 and 10 October 2021 were a Saturday and Sunday). Furthermore, the secondary party argued that internal control mechanisms had definitely been in place at his legal representative’s law office, such as regular case meetings and the fact that ‘every brief is subject to a final check before mailing’.

The Regional Administrative Court granted restitutio.

The VwGH, however, did not.

Pursuant to Section 71(1) AVG (Allgemeines Verwaltungsverfahrensgesetz, Austrian Administrative Procedures Act) restitutio in integrum is permissible if the reason for non-compliance with a deadline is an unforeseen or unavoidable event and the party is, at most, guilty of a minor degree of negligence.

According to established case law, a fault by a law-office staff member only constitutes an unforeseen or unavoidable event if the lawyer has met all supervisory duties reasonable and necessary under the circumstances. Thus, part of the lawyer's supervisory duties is to be aware of and meet deadlines. For granting restitutio in integrum it must be demonstrated that a law-office staff member had made a mistake although the lawyer's supervisory and control duties had been met.

In the absence of an effective internal control system, however, the application for restitutio was rejected.

VwGH Ro 2023/02/0008-6 (10.03.2023)