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Enid Campbell[∗]and Matthew Groves[#]
In most Australian jurisdictions there are limitations on the time within which proceedings for judicial review of governmental acts (or for particular remedies) are to be commenced. Some such limitations are imposed by statute, some by rules of court.
In some cases the relevant court of supervisory jurisdiction is authorised to extend the time. But in other cases there is no discretion to extend the time.
This article examines the justifications which have been offered for imposition by legislation of limits on the time within which applications for judicial review are to be made. It surveys Australian legislation on the subject and examines the legal effects of such legislation. The article also considers reasons why it may be thought desirable to give courts authority to extend prescribed time limits and the associated question of whether exercise of that authority should be regulated by legislative standards. The article also examines the factors which the Federal Court has considered relevant in the exercise of its discretionary power to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'), a section which is substantially reproduced in s 10 of the Administrative Decisions (Judicial Review) Act 1989 (ACT), s 26 of the Judicial Review Act 1991 (Qld) and s 23 of the Judicial Review Act 2000 (Tas).[1]
JUSTIFICATIONS FOR TIME LIMITS
The case for imposition of time limits on applications for judicial review was put most forcefully by Lord Diplock in O'Reilly v Mackman[2]in the following terms:
The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.[3]
Those observations were made in the context of the English legislative provisions regarding proceedings for judicial review[4]and whether those provisions could be circumvented by resort to other modes of contesting the validity or legality of governmental actions, notably by ordinary civil action.[5]Proceedings by ordinary civil action have, historically, differed from proceedings for judicial review in several ways. They could be commenced without the court's leave. The time limits created under the statute of limitations were much longer than the time limit applicable in judicial review proceedings. The procedures governing the conduct of judicial review proceedings were designed to produce much speedier determination of those proceedings than ordinary civil actions.
In an extra-judicial speech published in 1986, Sir Harry Woolf (now the Lord Chief Justice) endorsed the sentiments expressed by Lord Diplock in relation to the justification for the relatively short time limit for institution of judicial review proceedings (three months commencing on the date on which grounds for judicial review first arose). 'Delay', he said, 'can cause considerable uncertainty and inconvenience, not only for the respondent authority but members of the public as well.'[6]Some years later the English Law Commission, as part of a general inquiry entitled Administrative Law: Judicial Review and Statutory Appeals, considered the justifications for the relatively short time limits for the institution of judicial review proceedings. Its advice was that the existing time limitation be retained 'to give effect to the principle of certainty...'[7]
The Kerr Committee also favoured the introduction of a general time limitation on the commencement of applications. The Committee concluded:
Although there is much to be said for allowing a fairly lengthy period for lodgement [of applications for judicial review]...we feel that the demands of efficiency in government dictate that the period be short, perhaps even as short as thirty days. We consider that the Court itself should be given a discretion to extend the time in appropriate cases, whether or not an application for extension is lodged within thirty days.[8]
The Committee's support for time limitations may appear at odds with its strong emphasis on procedural simplification in the reforms it proposed to federal administrative law, but the Committee also stressed the need to 'achieve a balance between the desirability of achieving justice to the individual and the preservation of the efficiency of the administrative process.'[9]
If the Committee's suggestion that a time limit could be 'perhaps even' as little as thirty days was intended to convey some level of caution on this issue, it did not succeed. A period of 28 days was ultimately included in the ADJR Act.[10]It should be noted that the Administrative Review Council expressed no doubts about this period,or the general desirability of a limitation period on applications for judicial review, during its most significant review of the ADJR Act. The Council commented that the 28 day time limit 'provides some protection for public authorities against being left in suspense for an unreasonable period as to the legal validity of their decisions.'[11]
In some jurisdictions there are no specific time limits for the commencement of proceedings for judicial review. There are none in New Zealand,[12]nor in some of the Canadian provinces.[13]With one exception, there are also no specified time limits for commencement of proceedings in the Federal Court in the exercise of its supervisory jurisdiction under s 39B of the Judiciary Act 1903
(Cth).[14]In New South Wales the time limits are of very limited application.[15]Some have opposed the imposition of time limits of general application or the imposition of very short time limits. Cooke P, when President of New Zealand's Court of Appeal, observed in 1991 that ⎯
The absence of any rigid time limit for invoking the [supervisory] jurisdiction in this country is salutary, but it is a position that could not sensibly be maintained unless the Court continues to insist on reasonable promptness in all the circumstances of the particular case and declines to entertain truly stale claims.[16]
Some English commentators have suggested that the relatively short period prescribed by the English rules of court may 'stimulate weak or premature applications for leave' to apply for judicial review and also 'lead to some forms of governmental illegality going unchallenged'.[17]Illegal governmental action which, because the time within which it can be challenged before any court has expired, may be effectively validated.[18]
Professor Paul Craig has argued that the relatively short time limit imposed by the English general rule[19] may result in excessive and unwarranted resort to litigation and may also impede or discourage attempts to reach negotiated settlements.[20]Craig does, however, consider that there are good reasons for imposing time limits of shorter than three months for commencement of proceedings for judicial review of certain decisions, notably decisions to grant approvals or permits for land development.[21]
The Law Reform Commission of Western Australia adopted a similar view in its recent report on judicial review of administrative decisions. The Commission accepted that time limits should apply to the commencement of applications for judicial review, but concluded that the 28 day period adopted in Commonwealth and Queensland legislation was too short and 'generally has the consequence of necessitating applications for extension of time which consume limited judicial resources.'[22]The Commission recommended that the general period for the lodgment of applications of judicial review should be six months and that this period ought to be administered flexibly. It suggested that the time for commencing applications should be capable or being extended or shortened, depending on the circumstances of the case. The Commission recommended that the court should be empowered to dismiss proceedings brought within the proposed six month time limit if the proceedings were not commenced as soon as reasonably practicable, and the court was satisfied that the delay was 'likely to cause substantial hardship to any person or substantially prejudice the rights of any person or be detrimental to good administration.'[23]
Published judicial statistics do not reveal the number of cases in which applications for extension of time have been sought or the percentages of cases in which such applications have been granted. Our survey of approximately 50 reported cases before the Federal Court revealed that in a little over 50 per cent of the cases an extension of time was granted. If it were to be shown that the percentage of cases in which an extension of time was sought was high, and that as many as 50 per cent of such applications were successful, there might be grounds for thinking that the limitation period was too short. Consideration of applications for extension of time, after all, takes time and adds to the costs of litigation.
It is not difficult to envisage situations in which a shorter time limitation period may cause problems for the courts and parties. Take the example of an applicant who is aggrieved about a decision which is reviewable under the ADJR Act. The applicant may have sought and obtained reasons for the decision and, perhaps, considered those reasons for a short time before taking any further action. The applicant might, after some thought, consult a solicitor. A solicitor would normally consider the case and consult a barrister about the potential grounds of review and their likely success. Each of these steps would take several days. If the solicitor and barrister were responsible for other matters, as is usually the case, the demands of these other cases would slow each practitioner in finalising advice on the matter. Further delay might occur if the application raised issues that were complex or uncertain and required detailed consideration. The solicitor and barrister would confer with each other and then the client. It is possible that practitioners involved in such a case could not lodge a considered application for judicial review within 28 days of receipt of reasons for the decision by the client, even though the practitioners acted with reasonable speed and diligence. The practitioners might, however, draft a hasty application for judicial review to ensure that the client was not defeated by the time limitation contained in the ADJR Act. The application might subsequently require amendment, to incorporate new or different grounds that the practitioners had come to favour after more consideration of the case. It might even be decided that the application should be withdrawn. The amendment or withdrawal of the application would cause unnecessary expense and effort for both the court and the decision maker, which might be avoided if the time limitation was two or three months rather than 28 days.
TYPES OF TIME LIMITATION CLAUSES
Specific limits on the time within which proceedings for judicial review are to be commenced can be imposed only by legislation, that is to say by statute or subordinate legislation made thereunder. Under the general law the award of prerogative writs is discretionary. It has long been recognised that delay in the making of an application for a prerogative remedy is a ground on which remedy may be denied.[24]Delay may also be a ground for denying injunctive relief.[25]
In England the first statutory enactment to limit the time within which a prerogative remedy had to be sought seems to have been s 5 of 13 Geo II c 18 (1740).[26]
This provision set a limit of six months in respect of applications for certiorari to quash convictions and orders of justices of the peace. There are New South Wales cases in which it was accepted that this English statutory provision became law in that State by virtue of s 24 of the Australian Courts Act 1828 (UK).[27] The Imperial Acts Application Acts of New South Wales, Queensland and Victoria (of 1969, 1984 and 1980 respectively)make it clear that, if the English provision ever applied in these States, it no longer applies. But that provision is still reflected in the rules of court of the High Court of Australia and the Supreme Court of Western Australia.[28]
Today there are in many jurisdictions legislative instruments which prescribe time limits for the institution of proceedings for judicial review, though they vary in their coverage. Some such instruments are specific in terms of the remedy sought, against whom and in respect of what acts.[29]Other legislative provisions apply to much wider classes of proceedings for judicial review.[30]
The time limits which have been specified in general legislation which governs judicial review vary, as do the dates from which time begins to run. In England, r 54.5(1) of the Civil Procedure Rules ('CPR') sets a period of three months, commencing on the date when grounds for judicial review first arose. But the rule also stipulates that 'the claim for seeking permission to apply for judicial review must be filed promptly...'[31]Rule 98.06 of the Rules of the Supreme Court of South Australia is similar though it specifies a limitation period of six months. Those who apply for prerogative orders and injunctions under s 46 of Queensland's Judicial Review Act 1991 do not need the leave of the Supreme Court to proceed, but they must make their applications as soon as possible, and in any event within three months after the date on which grounds for judicial review arose. A period of 60 days is specified in r 56.02 of the General Rules of Procedure in Civil Proceedings of the Supreme Court of Victoria and r 56.02 of the Rules of the Supreme Court of the Northern Territory, though neither rule includes an express requirement that an application must be made promptly.
Under all of these provisions time begins to run from the date on which the grounds for judicial review first arose, irrespective of whether the applicant was aware at that time of the decision or action sought to be reviewed.[32]Some other general legislation setting time limits provides that time does not begin the run until the applicant has been notified of the decision sought to be reviewed. Section 4(1) of Victoria's Administrative Law Act 1978, for example, sets a time limit of 30 days for commencement of proceedings under that Act for review of decisions of tribunals (as defined in s 2 of the Act). Time runs from 'the giving of notification of the decision or the reasons therefore (whichever is the later) . . .' Section 8 of the Act limits the time within which a person affected by a decision may request a statement of reasons for a tribunal's decision. The section also requires that the statement of reasons be furnished within reasonable time.
A 28 day period is set by s 11 of the ADJR Act (Cth), by s 10 of the Administrative Decisions (Judicial Review) Act 1989 (ACT), by s 26 of the Judicial Review Act 1991 (Qld) and also by s 23 of the Judicial Review Act 2000 (Tas), but the date on which time begins to run varies. Generally it runs from the date on which written reasons for decision are furnished to the applicant, irrespective of whether the statement has been volunteered or supplied on request under section of the Act (s 13 in the case of the federal Act). The time allowed for persons to seek written reasons for decision, and the time within which such reasons must be given, means that in many cases the effective time limit for commencement of proceedings for review under the Act will be about three months. A request for written reasons may be refused on the ground that it has been made out of time or because the applicant is not, in any event, entitled to reasons.[33]In that case time begins to run against the applicant for review on the date that he or she is notified of the refusal. In cases in which a statement of reasons for decision has not been requested, or volunteered, time begins to run against an applicant when he or she has been furnished by the respondent (or someone acting on the respondent's behalf) with a document which sets out the terms of the decision.[34] In cases in which there is no applicable time limit, there is a requirement that the application for review be made within reasonable time.[35]
General legislation which imposes time limits for institution of judicial review proceedings does not necessarily displace specific legislation which deals with applications for judicial review of decisions made in purported exercise of powers conferred by that specific legislation.[36]The general legislation may, indeed, preserve the operation of the time limitations imposed by the specific legislation.[37]
Opinions on what is an appropriate limit on the time within which applications for judicial review are to be commenced are likely to differ; as may opinions on when time should begin to run against an applicant. What is considered to be an appropriate time limit may also depend on whether provision is made for extension of time by judicial order, and whether a court is authorised to dismiss an application made within time on the ground that it has not been made as soon as possible, or promptly.
From the point of view of potential applicants for judicial review, and also potential respondents, it may be thought desirable that there be clear legislative prescriptions regarding the time allowed to applicants to institute judicial review proceedings, including clear rules about when time begins to run and finish. From their point of view it is also desirable that potential parties be afforded some guidance about the prospects of applications for extension of time being granted (assuming extension may be granted), or applications within time being dismissed (if that is allowed) on the ground of delay. Applicants for judicial review may well be aggrieved if their cases are allowed to go forward to hearing on the substantive issues they raise, only to have their applications for remedy denied on the ground of their delay in institution of the review proceedings.
The imposition of time limits for commencement of judicial review proceedings can have the effect of reducing the case loads of the courts before which such proceedings may be brought.[38]The extent to which, if at all, time limit clauses are likely to have that effect will obviously depend on factors such as the following:
(a) Whether the time limits are mandatory and incapable of being extended by the relevant court of supervisory jurisdiction;
(b) Whether the applicable rules require that applicants for judicial review seek and obtain the court's leave to have the application go forward to a hearing on the substantive issues;
(c) Whether the court is authorised to extend time and, if so, the numbers and percentage of cases in which applications for extension are made, and the time taken in dealing with such applications;
(d) Whether decisions to grant leave to apply for judicial review, or decisions to grant extensions of time, are reviewable by a court of appeal.[39]
LEGAL EFFECTS OF TIME LIMITATIONS
When a statute has imposed a time limit for commencement of proceedings for judicial review, and has made no provision for grant of extension of time, the statute may be interpreted as having restricted the jurisdiction of the court of review. Section 5 of 13 Geo II c 18 (1740) was interpreted by most English judges as having precluded judicial review once the time limit had expired.[40]There are, however, Australian and Canadian decisions to the effect that s 5 (or similar provisions) do not affect a court's jurisdiction to review on the ground of jurisdictional error.[41]In contrast judges of the Supreme Court of Victoria have taken the view that s 4(1) of the Administrative Law Act1978 (Vic) deprives the court of jurisdiction to review under this Act once the prescribed time limit has expired, whatever the grounds for seeking review.[42]
Prior to amending legislation enacted in 2001, s 478(1) of the Migration Act 1958(Cth) prescribed a time limit for institution of proceedings before the Federal Court for review of decisions reviewable under Part 8 of the Act. Subsection (2) expressly prohibited extensions of time. The section as a whole was held to restrict the Federal Court's review jurisdiction.[43]These provisions did not, however, affect the review jurisdiction of the High Court under s 75(v) of the Commonwealth Constitution.
There has been a difference of judicial opinion about the effect of statutory provisions which impose a time limit on the time within which the validity of specified acts or decisions may be contested before the courts and which then go on to provide that those acts or decisions cannot be called into question in any legal proceedings. English courts have construed such provisions as precluding judicial review after the specified time has expired, even if review is sought on jurisdictional grounds.[44]A 1982 decision of a judge of the New South Wales Land and Environment Court adopted a similar view.[45]But a later decision of the State's Court of Appeal accorded a more limited effect to such a provision.[46]The Court's position was essentially that a provision of this kind will not protect decisions which have not been made in a bona fide attempt to exercise the relevant statutory power, or which do not relate to the subject matter of the empowering legislation, and are not reasonably capable of reference to the statutory powers the decision-maker has been given.[47]
If there is a statutory time limit for institution of judicial proceedings it cannot be varied by purported exercise of a delegated power to make rules respecting the practice and procedure of the court.[48]The delegated power does not even extend to the adoption of a rule which authorises the court to extend time.[49]Even when there is no
applicable statutory time limit there may be doubts about whether the delegated rule making power allows for the adoption of rules prescribing time limits for commencement of proceedings.[50]
Section 75(v) of the Commonwealth Constitution secures to the High Court an original jurisdiction in matters '[i]n which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.' This jurisdiction cannot be abridged save by formal amendment of the Constitution. But is it open to the federal Parliament to enact legislation which limits the time within the jurisdiction may be invoked? That was one of the questions which arose for consideration by the High Court in Plaintiff S157/2002 v Commonwealth.[51]
The plaintiff in this case had contested the constitutionality of provisions which had been inserted in the Migration Act 1958 (Cth) in 2001. Section 486A provided that —
(1) An application to the High Court for a writ of mandamus, prohibition or certiorari or an injunction or a declaration in respect of a privative clause decision must be made to the High Court within 35 days of the actual (as opposed to deemed) notification of the decision.[52]
(2) The High Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 35 day period.
The term 'privative clause decision' was defined in s 474(2) to mean 'a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act...'[53]Section 474(1) contained a privative clause expressed to apply to all courts. It stated that —
A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
In the case of Plaintiff S157/2002 the High Court held that s 474 was not effective to preclude judicial review on the ground of excess of jurisdiction or failure to exercise jurisdiction. Indeed the expression 'privative clause decision' did not cover decisions tainted by jurisdictional error.[54]It followed, in the opinion of the majority, that s 486A had no work to do when a decision was challenged on the ground of jurisdictional error.[55]Callinan J considered that s 486A was invalid so far as it imposed a 35 day time limit.[56]
Subsequently a Full Court of the Federal Court interpreted s 477 of the Migration Act 1958 (as amended) in the same way as the majority in Plaintiff S157/2002 had interpreted s 486A.[57]Section 477 is expressed to apply to proceedings before the Federal Court for review of 'privative clause decisions'. Like s 486A, it prescribes a time limit (of 28 days) which cannot be extended by the Court.
The High Court decision in Plaintiff S157/2002 probably cannot be construed as meaning that it is impossible for the federal Parliament to enact legislation which limits the time within which applications to the High Court for judicial review may be made. Callinan J thought that the express incidental powers conferred on the Parliament by s 51(xxxix) of the Constitution would allow the Parliament to enact legislation of a regulatory character[58]but s 486A of the Migration Act 1958 (Cth) did not in his opinion fall into that category.[59]Rather it was prohibitory and it did not permit the court to extend the time.[60]In this connection it should be noted that the High Court has never queried the validity of those of its own rules which impose time limits in respect of applications for specified remedies.61 The power of the Court to make such rules is a delegated legislative power which rests ultimately on the express incidental power conferred by s 51(xxxi) of the Commonwealth Constitution.
The reasoning adopted by Callinan J in Plaintiff S157/2002 implies that the likelihood legislation limiting the jurisdiction of the court to grant an extension of time will be held to be prohibitory (and constitutionally impermissible), rather than regulatory (and constitutionally permissible), will depend on the substantive restrictions imposed on the ability of the court to determine an application for an extension. On this view, the Commonwealth Parliament could enact legislation that limits the capacity of the High Court to grant an extension of time to applicants, though the extent to which any restrictions could go without infringing constitutional principles remains unsettled.
Sections 474 and 486A of the Migration Act could be amended in a manner that removes the nexus between the definition of 'privative clause decisions' and the restrictions imposed upon the High Court to grant extensions of time. Such legislation could take many forms. The High Court could, for example, be granted a general discretion to extend time only in exceptional circumstances, or in cases where the court was satisfied that there were strong reasons to justify the grant of an extension. If legislation of this nature did not attempt to define the meaning of 'exceptional circumstances' or 'strong reasons', the court would remain free to determine the content of the principles by which extensions would be granted. Legislation of this nature would most likely be held, according to the terminology adopted by Callinan J, as regulatory.
The result might be different if legislative amendments attempted to impose substantive limits on the power of the High Court. Amendments could grant the High Court a general power to determine applications for extensions of time and direct it to take account of the circumstances of each case, but specify that particular circumstances cannot be invoked as grounds for an extension of time. Legislation of this nature could provide that the fact that an applicant is held in detention cannot be invoked as a ground for an extension of time. Amending legislation might, on the other hand, specify that only particular circumstances could be relied upon as grounds for an extension of time and expressly prohibit an applicant from invoking other circumstances. In the first example the High Court would retain a general discretion to determine applications for extensions subject to specified exclusions. In the second example, the general discretion would be abolished and replaced by a statutory code to effectively govern the court's discretion. Legislation that followed the second example would be more likely to be held as be impermissible according to the reasoning adopted by Callinan J in Plaintiff S157/2002 because it imposed a greater restriction on the ability of the court grant relief. The validity of legislation modelled on either example would, however, depend ultimately on the nature and scope of any restrictions imposed on the court.
There can be little doubt that the federal Parliament has power to enact legislation which limits the time within which applications for judicial review are to be made to the Federal Court (or any other court of federal jurisdiction), and which does not allow for extension of the prescribed time limit. Section 77 of the Constitution authorises the Parliament to delimit the jurisdiction it confers on any of the courts it creates. If it invests a supervisory jurisdiction in the Federal Court, it may restrict the grounds in which that jurisdiction may be invoked.[62]A non-extendable time limit on the institution of judicial review proceedings, arguably, operates as a restriction on the court's jurisdiction.[63]While the decision in Plaintiff S157/200264 suggests that a privative clause will not be effective to preclude judicial review on the ground of jurisdictional error, it is possible that a privative clause could preclude judicial review for jurisdictional error upon the expiry of specified period of time. For example, a provision could specify that the Federal Court had no jurisdiction to entertain applications for judicial review on any ground, including a ground that would if proven constitute a jurisdictional error, after a specified period had elapsed. A clause of this nature might be an effective limitation on the jurisdiction of the court.
DISCRETIONARY POWERS RESPECTING TIME LIMITS
Some legislation which specifies time limits provides that applications for judicial review (or where this is necessary, leave to apply for judicial review) may be dismissed even if they have been brought within the specified time, and may be dismissed on the ground that the application has not been made promptly or as soon as possible.[65]Section 4(2) of Victoria's Administrative Law Act 1978 authorises the Supreme Court to dismiss an application made under that Act, even though it has been made within time and a prima facie case for relief has been disclosed in the requisite affidavit. The court may refuse an application for relief if it 'is satisfied that no matter of substantial importance is involved or that in all the circumstances such refusal will impose no substantial injustice upon the applicant'.[66]
Many legislative provisions governing applications for judicial review in general, or wide classes of such applications, expressly grant power to the relevant court to extend the specified time limits, but usually without any guidance on the factors to be taken into account in exercising the discretionary power.[67]When the specified time limit is relatively short, it is clearly desirable that the court be authorised to extend time in particular cases. Applicants may have acceptable explanations for their delay and there may be no good reasons why they should be denied an extension of time. They may have been unaware of the availability of judicial review or of the existence of the time limit. They may have lacked financial means to engage the services of a lawyer or have been denied legal aid. They (and perhaps even their lawyers) may have misunderstood the effect of the applicable time limit: for example when time began to run. They may have been ill during the time when time was running against them, or in prison or in some other place of detention. The delay may be attributable to fault on their lawyers' part. They may have had resort to some other avenue of redress, but to no avail.[68]That there were grounds for seeking review may not have become apparent until a court has ruled on a case similar to their own.[69]
There can even be occasions on which a person who seeks review does not become aware of the action sought be reviewed, or grounds on which review might be sought, until after the time limit has expired. The action sought to be contested may have been not in relation to the would-be applicant in particular, and notice of it not communicated to him or her. Even if notice of the action has been communicated personally to that person, evidence suggesting that the person has been denied natural justice or that the decision was tainted by fraud may not have come to light until much later.[70]
Delays in making applications for judicial review may be explained, but it is clear that not every explanation provides an acceptable reason for granting an extension of time.[71]Whether an extension should be granted will depend on not only the applicant's personal circumstances but also on the nature of the action or decision in respect of which review is sought. For example, whether the action taken or decision made was in relation to the applicant in particular, or in relation to a third party, or in relation to both the applicant and third parties, or in relation to a class of persons of which the applicant is a member, or simply in relation to a matter in which the applicant has a sufficient interest to give him or her or it the requisite standing to sue.
When deciding whether or not to grant an application for extension of time, a court may properly take into account the legal and practical effects of a judicial determination that the act or decision sought to be reviewed is invalid. For example, what would be the implications of such a determination for third parties who have acted on an assumption that the decision in question was valid? A third party may have entered into commercial transactions on such an assumption.[72]Third parties who could also be adversely affected by a judicial determination that some administrative decision was invalid could be persons engaged to replace someone whose employment in a public service had been terminated, or who had been demoted in rank. There could also be cases in which the decision sought to be reviewed is one which has involved allocation of quotas as between a number of applicants, or distribution of funds from a limited funding source, among a number of qualified claimants (eg, persons eligible to be granted funds in aid of artistic activities from a fund source which varies in size from one financial year to another).
The next part of the article deals with principles the Federal Court of Australia has developed and applied in the exercise of its power under s 11 of the ADJR Act to extend the time limits imposed by that section. The case law upon the time-limitation clauses contained in that section is considerable and has proved to be influential in the administration of comparable provisions in State legislation.[73]
REGULATING A DISCRETION TO EXTEND TIME
When a court is given a discretion to extend the time for commencing proceedings for judicial review it may be given little or no guidance regarding factors to be taken into consideration in the exercise of that discretion. Section 11 of the ADJR Act, for example, does not offer any guidance in this regard.[74]A provision which states that time is not
to be extended except in 'special circumstances', but does not define that phrase, plainly grants considerable latitude to the court to decide what are to be regarded as special circumstances.[75]Even when there is no fixed time limit, but a stipulation that applications must be lodged within a reasonable time, the court is left to establish standards according to which they will adjudge whether particular applications for review have been made within reasonable time.[76]
There is now a considerable body of case law regarding the exercise of the discretion to extend the 28 day limit imposed by ss 11(1)(c) and (3) of the ADJR Act. Most of it is to be found in decisions of primary judges, though in several cases there have been appeals to a Full Court of the Federal Court.[77]Appeals in such cases are determined according to the ordinary principles governing appeals against decisions made in exercise of judicial discretions.[78]
The judges of the Federal Court have accepted that their power to extend time should be exercised on a principled basis: that they should articulate the criteria they are applying and should provide reasons for their rulings. In identifying relevant criteria they have emphasised that the general law regarding delay in applying for prerogative writs (and like orders) and the doctrine of laches should not be controlling.
Likewise principles regarding a grant of an extension of time under statutes of limitation which relate to ordinary civil actions, such as actions for damages, have influenced, but not determined, the principles governing extensions of time for application under ss 11(1)(c) and (3) of the ADJR Act.[79]
The ADJR Act did not come into force until 1 October 1980. In July 1984, in the case of Hunter Valley Development Pty Ltd v Cohen, Minister for Home Affairs and Environment,[80]Wilcox J distilled from seven prior decisions[81]several 'principles to guide, not in any exhaustive manner, the exercise of the court's discretion' to extend time under the Act.[82]Two judges of the Federal Court subsequently explained that the Hunter Valley principles are not statutory criteria, but rather they are a 'guide to the exercise of an open-textured discretion'.[83]Though merely guidelines, the principles expounded by Wilcox J have proved a common starting point in subsequent cases in which extensions of time have been sought. They have also been accepted as relevant in relation to extensions of time under the Administrative Appeals Tribunal Act 1975(Cth).[84] What then are the Hunter Valley principles?
Principle 1: Acceptable explanation of the delay
Wilcox J stated that 'the prima facie rule [is] that proceedings commenced outside ...[the prescribed] period will not be entertained' and that 'it is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time'.[85]The court would 'not grant the application unless positively satisfiedthat it is proper to do so'.[86] This might be said to be the cardinal principle. It reminds applicants that they should be prepared to provide an explanation for their delay,perhaps supported by evidence. But the court has to decide whether the explanation is acceptable and, even if it is, whether it is proper to grant the application for extension of time.[87]
There have been later cases in which judges have suggested that it is not always essential that an applicant establish an acceptable explanation for delay.[88]On the other hand, there are cases in which the absence of an acceptable explanation has been a primary reason for refusing an application for extension of time.[89]Perhaps the better approach is that 'the quality of the explanation cannot be viewed in isolation: it should be weighed in the balance with any other relevant considerations'.[90] The judicial rulings indicate that what explanations for delay will be acceptable may vary according to the personal circumstances of each applicant: for example whether the applicant knew, or could be expected to know of the time limit, or could be expected to obtain prompt legal advice without a grant of legal aid.[91]Some judges have been appreciative of the particular problems encountered by persons in custody in detention centres maintained under the Migration Act 1958 (Cth),[92]but the judicial discretion to extend time to such persons would, in many cases, have been removed by s 478(2) of the Migration Act 1958 (introduced by the Migration Reform Act 1992 (Cth)).
In the main judges have been prepared to have regard to whether the delay was attributable to the applicant's legal adviser or former legal adviser.[93]Proof that there was fault on the part of such advisers may assist the party who seeks an extension of time, but it will not be automatically accepted as a sufficient reason for granting an extension.[94]Fault by a legal adviser may, however, exert a greater influence over the court if it is shown that the applicant may not have a fully effective remedy against the lawyer.[95]
There have also been cases in which applicants have pointed to the difficulties they have encountered in receiving the legal aid they claim is required to pursue an application for judicial review. Reported cases do not, however, reveal much about the significance likely to be attached to this consideration.96 Judges have on occasions queried the bona fides of those seeking judicial review and who have sought extensions of time to make such applications. Most of these cases have been ones in which the party seeking review is someone under threat of being deported from Australia by action taken under the Migration Act 1958 (Cth).97 The changes made to that Act in 1992 relieved the Federal Court of the need to deal with many cases in which applications for review made out of time appeared to have been filed for the purpose of postponing the date on which the applicant would have to leave the country.
Principle 2: Action taken by the applicant to make the respondent aware of dissatisfaction with the decision
Wilcox J stated that '[a]ction taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished'.[98]He went on to say that:
The reasons for the distinction, Wilcox J suggested, 'are not only the "need for finality in disputes" . . . but also the "fading from memory" problem'.[99]A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision(who has not "rested on his rights") ... and a case where the decision-maker was allowed to believe that the matter was finally concluded.
The non-curial means adopted to make the decision-maker aware of a contest might include a request for reconsideration of the decision,[100]attempts to obtain a negotiated settlement (if that is open), or resort to an appeal process which might have proved unsuccessful (perhaps because the appeal tribunal lacked jurisdiction).[101]
The relevance and weight to be attached to the factor identified in principle 2 could depend on the nature of the action or decision sought to be judicially reviewed. This factor may be highly relevant and significant when the decision in question is not self- executing (eg, cancellation of an occupational licence), but is rather one which has to be implemented by further action on the part of the respondent and whose implementation involves redeployment of staff and/or reallocation of financial resources.
In some situations applications of principle 2 may not be easily separable from applications of principle 3 ⎯ 'prejudice to the respondent'.
Application of principle 2 may operate to the advantage of those parties who have better than average knowledge of the means available to them to protest against administrative decisions which affect them, or the financial means to employ competent lawyers who have acted promptly on their behalf to make the respondent agency aware, at an early stage, that the validity of a decision is contested. Judges, we suggest, need to be sensitive to the fact that there are people who are quite ignorant of the means by which they can register dissatisfaction with administrative decisions which affect them, and also people who, for one reason or another, are not disposed to register their complaints on their own initiative. Similar considerations apply to people who may have difficulty in registering their objection to a decision due to special disadvantages, such as language or cultural difficulties, or who live or are detained in remote locations from which it is hard to access the outside world.[102]
Principle 3: Prejudice to the Respondent
'[A] material factor militating against grant of an extension' of time is, Wilcox J stated,'[a]ny prejudice the respondent, including any prejudice in defending the proceedings occasioned by the delay'.103 In a later case it was said that prejudice in this context must be something more than that which flows from having to defend an application for judicial review.[104]Nevertheless, judges have recognised that the ability of a governmental respondent to defend judicial review proceedings may be adversely affected by difficulties likely to be encountered in assembling relevant evidence from persons no longer employed within the respondent agency.[105]
Difficulties of this kind can be encountered when the applicant for judicial review is contesting the validity of administrative action on grounds which, if they are to be established, will necessarily involve admission of evidence which is not disclosed on the face of the record, or which is admissible as documentary evidence. Governmental respondents may be required, by legislative enactments, to maintain substantial documentary records of their activities. But the documentary records maintained by legislative edict may not be of a kind which will provide evidence in support of some allegations that governmental powers have been exceeded or abused. To take but one hypothetical example, evidence that a decision-maker who would have been disqualified from deciding a matter, if reasonable apprehension of bias on his/her part could be shown, might not be provided by documentary records; only by oral testimony.
Judicial decisions suggest that there are very few circumstances in which a governmental respondent to an application for extension of time will be able to persuade the court that prejudice to it is a sufficient cause to refuse an application for the grant of an extension of time.[106]
Principle 4: 'Mere absence of prejudice is not enough to justify the grant of an extension' of time[107]
Wilcox J referred to 'public considerations' and went on to say: '[a] delay which may result, if the application is successful in the unsettling of other people . . . or of established practices . . . is likely to prove fatal to the application'.108 Other judges have spoken of the interests of good administration, 109 and also of the need to have regard to the objects of the legislation under which the decision sought to be challenged has been made.[110]
Principle 4 requires attention to be given to the nature of the decision or action sought to be reviewed and its impact on persons and bodies other than the immediate parties. It is particularly relevant in cases where the contested action concerns the grant of benefits to third parties. Cases of this kind include the grant of licences to third parties,[111]fees chargeable by the applicant (which may affect many parties other than the applicant),[112]or employment of a person to replace the applicant.[113]Attention to the interests of good administration may involve consideration of the possible consequences of a court order which would require re-opening of a matter previously determined. One example is the remuneration payable to part-time members of a tribunal when their entitlements depend on maintenance and production by them of records of their services.[114]
Principle 5: 'The merits of the substantial application'[115]
Wilcox J identified this as a consideration which could properly be taken into account though he did not suggest that it has to be taken into account in every case. Other judges have endorsed that view.[116]There is obviously no point in considering the merits if there is no acceptable explanation for the applicant's delay. But if the delay has been explained, the court may properly consider the applicant's prospects of success on the substantive application, on the basis of the material presented to it.[117] There have been a number of cases in which applications for extension of time have been refused partly on the ground that the applicant's case for remedy lacked merit.[118] Indeed, in some cases it might be said that the court had effectively decided the merits.
Sometimes the material before the court when the application for extension of time is considered may be inadequate to permit any safe assessment of the prospects of success. On the other hand, the material may indicate that the applicant has presented a legal issue of some importance which should be determined.[119]It is even possible that the parties may agree on the merits of the application.[120]
Principle 6: 'Considerations of fairness as between the applicants and other persons in a like position'.[121]
Wilcox J identified this as a relevant consideration, but again did not suggest that it must be taken into account in every case in which an application for an extension of time has been sought. Wilcox J was probably suggesting no more than that judges of the court endeavour to be consistent in their approaches to cases of much the same kind. For example, where the applicant has sought review of a deportation order, or a decision terminating a person's entitlement to remain in Australia and which might be followed by proceedings for deportation.
Considerations of fairness as between the applicant and similarly placed persons may also arise as a result of the grant of extensions of time to other applicants whose applications raised essentially the same complaint. Applications for an extension of time may, for example, be sought on the basis that the decision-maker adopted an interpretation of the law that was subsequently declared unlawful. A court would most likely grant such applications, particularly if the respondent conceded that the alleged error of law had been made. Subsequent applications for extensions of time may be made by similarly placed persons. The determination of subsequent applications would be influenced by the unfairness that would occur if one applicant was denied an extension granted to others.[122]
Other principles
In Hunter Valley, Wilcox J made it clear that the principles he enunciated were not to be taken as exhaustive.[123]From later cases it is possible to discern some other principles which judges of the Federal Court have invoked when deciding applications for extension of time under the ADJR Act. One such principle is that invoked in cases in which the decision sought to be reviewed is that of an officer invested with a power to initiate a criminal prosecution.[124]A decision to prosecute may be contested on the ground that it represents an abuse of the criminal court's processes, because of undue delay on the part of the prosecutor in commencing proceedings. Should the further prosecution of a criminal charge depend on a finding by a magistrate in committal proceedings that there is a prima facie case, there may be a contest about the magistrate's decision.[125]There are cases in which judges of the Federal Court have refused applications for extension of time under the ADJR Act wholly or partly on the ground that the applicant has, or could have, raised the issue sought to be raised in judicial review proceedings in the criminal proceedings.[126]
There may also be cases in which the practical problems caused by an application provide sufficient reason to refuse an extension of time. R v Rochdale Metropolitan Borough Council; Ex parte B, C and K[127] was such a case. In that case several parents sought judicial review of the placement of their children in particular secondary schools. The court held that the application should have been brought before the start of the school term in order to prevent disruption to the children concerned, other students, teaching staff and all of the schools affected by the application. In a later case the House of Lords suggested that the timing of the application in the Rochdale Case caused 'immense practical difficulties' which provided a sufficient reason to refuse the application even if it was made within time.[128]
Australian legislators have not thought it necessary to lay down guidelines regarding factors to be considered by a court when it is asked to extend the time for making an application for judicial review. In Australia there is no equivalent to s 31(6) of the Supreme Court Act 1981 (UK). This provision is relevant at the preliminary stage, when an application for permission to apply for judicial review is made under Rule 54 of the CPR (Eng) and also at the substantive hearing. Rule 54.5(1) of the CPR stipulates that:
The claim form [in an application for judicial review] must be filed —
(a) promptly;
(b) in any event not later than three months after the grounds to make the claim first arose.
Section 31(6) of the Supreme Court Act 1981 provides that:
Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant ⎯ (a) leave for the makingof the application; or any relief sought on the application, if it considers that the granting of the relief sought would cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.
The relationship between the two provisions is by no means clear, but recent decisions of the House of Lords seem to have established the following:[129]
(a) In the preliminary stage an application for leave to apply for judicial review may be refused on the ground of undue delay on the part of the applicant, even if the application has been made within the three-month period.
(b) While it is open to the court to consider at this stage the factors identified in s 31(6) of the Act, it should not normally do so. This is because the application for permission to apply for judicial review is usually heard ex parte and the court may well not have before it the material necessary to form a judgment on the questions of hardship, prejudice or detriment.[130]
(c) Should leave to apply be granted, and time extended, these questions are to be considered at the substantive hearing and may result in a denial of remedy.[131]
The matters referred to in s 31(6) of the Supreme Court Act 1981 (UK) are also matters which the Federal Court may consider when considering an application for extension of time under s 11 of the ADJR Act. Such an application is normally defended by the respondent and submissions in support and against the grant of the application are presented.[132]Should the Federal Court grant an extension of time, if the Court then proceeds to deal with the substantive issues, it cannot, it is submitted, properly decide not to award any of the discretionary remedies referred to in s 16 of the Act on the ground that the application for review was lodged out of time or not as soon as possible. It must be conceded that there is no direct authority to this effect, but we suggest that this proposition is one logical consequence of a decision to grant an extension of time for an application for judicial review. Our reasoning is as follows. The Hunter Valley principles provide a formula for the Federal Court to determine whether an extension ought to be granted in all the circumstances of a case. It is difficult, if not impossible, to envisage a case where the Court had considered and applied this holistic formula in favour of the applicant, but then decided that the issue of delay could be subsequently revisited. How, for example, could delay be relied upon as a reason to invoke the discretion to refuse relief if the court had already decided that an acceptable explanation for the delay had been provided (according to principle 1), or that the merits of the substantial application warranted the grant of an extension of time (principle 5)? This reasoning does not, however, deny the ability of courts to refuse relief for the reasons that may normally be invoked under s 16 of the ADJR Act.[133]
Some potential applicants for judicial review (and their legal advisers) might welcome the enactment of legislation which specifies factors which must or may be taken into account by judges in determining applications for extension of time. The enactment of a non-exhaustive list of factors relevant to the grant of extensions of time would, arguably, have little value because it would not relieve courts of the need to take account of the particular circumstances of each case. The drafting of exhaustive legislative guidelines might present similar difficulties. Such guidelines would have to be expressed in very general language if courts were to remain able to take account of the differing circumstances that can be relevant to the grant of an extension of time. It is debatable whether such guidelines would represent any real advance on those pronounced in the Hunter Valley case.
Some judges may regard legislation of this nature, even if it is non-exhaustive, as unduly inhibitory and also unnecessary, unless it can be demonstrated that they have exercised their power to grant or refuse applications for extensions of time arbitrarily, inconsistently and in an unprincipled manner. It is possible that some judges may be relieved when a government secures enactment of legislation which withdraws their former power to extend the time allowed for seeking review of specified classes of decisions.[134]
ABSENCE OF SPECIFIC TIME LIMITS
As has already been mentioned,[135]when no time limits have been specified by legislation for the initiation of applications for prerogative remedies, the courts have a discretion to refuse relief on the ground of the applicant's delay. Section 31(6) of the Supreme Court Act 1981 (UK) empowers a court to refuse either leave to apply for judicial, or to grant, relief where there has been undue delay in making the application for judicial review. This provision contains no date from which time runs and, therefore, no specific time limit. The House of Lords has suggested that the absence of any time limit grants a 'useful reserve power' by which courts may decline relief in appropriate circumstances.[136]
In combination, s 11(1) and (3) of the ADJR Act set time limits which will apply to many applications for review under the Act.[137]Section 11(4), however, recognises that in some cases there will be no applicable time limits because the person seeking review will not have been furnished by the decision-maker (or anyone acting on behalf of the decision-maker) with a document setting out the terms of the decision sought to be reviewed. The decision in question may be one affecting a wide section of the community and the applicant for review may be a person or organisation who seeks to challenge the decision in reliance on liberalised rules about standing. Section 11(4) also recognises that the specified time limit may apply to a person other than the present applicant but not to this present applicant.[138]
In these cases the Federal Court is authorised to refuse to entertain the application if it 'is of the opinion that the application was not made within a reasonable time after the decision was made'.139 In forming an opinion on this question the Court is required to have regard to 'the time when the applicant became aware of the making of the decision'.140 If the case is one in which the time limit applied to another person, the Court is required to have regard to that limit. But in either case the Court 'may have regard to such other matters as it considers relevant'.[141]
There have been cases in which the Federal Court has had to decide whether or not s 11(4) is the applicable provision.[142] The cases indicate that s 11(4) will apply if, although the applicant has been furnished by the decision-maker with written notice of the decision sought to be reviewed, that notice does not ⎯ in terms of s 11(3)(b)(iii) ⎯ set out the terms of the decision. Section 11(4) is also likely to be applicable in many cases in which the applicant for review is a person or body which has brought suit to protect a public interest or the interests of a section of the public. Such suitors will not, however, necessarily be recognised as having the requisite standing to sue.[143]
Today there is wide support for the imposition by legislation of limitations on the time within which applications for judicial review are to be commenced. Time limitations foster certainty in administrative action because upon expiry of the period specified in a time limitation, it may be assumed that a decision may be relied upon. This certainty benefits not only those who are directly affected by a decision, but also decision- makers, the wider government and the general public. It must, however, be conceded that the extent of this certainty is lessened in proportion to the readiness with which extensions are granted.
There are clear reasons why time limitations should not vary according to the nature of the remedy being sought. In many instances an applicant for judicial review may properly seek several forms of relief, or proceed by way of a uniform method of seeking judicial review, as is required for applications made under the ADJR Act. A provision that imposed differing time limitations for the differing remedies that are available under s 16 of the ADJR Act, even though the application for those remedies was commenced under a single application for judicial review, would introduce an undesirable element of complexity into the law governing judicial review.
It is also preferable that time limits be prescribed by legislation, rather than by courts in the general exercise of their discretion to refuse discretionary remedies. Time limitations governing applications for judicial review constitute a significant constraint on the general right of access to the courts. Decisions to impose restrictions of this nature should, as a matter of principle, be taken by the legislature.
There may be differences of opinion about the appropriate limitation period, and the point at which time should begin to run, but most would agree that legislation prescribing time limits should specify clearly when time begins to run. In some instances, it may be appropriate to specify that time begins to run when a decision is made. Where the regime under which a decision is made specifies that a person affected by a decision must be provided with notice of a decision and reasons for the decision, it may be appropriate that time begins to run when reasons are furnished or received. Where there is no such requirement, but an applicant may seek reasons for a decision, it may be appropriate that time begins to run upon delivery of those reasons or, if no reasons are sought, from the time that the person receives notice of the decision. Provisions governing time limitations should affix to such events in order to provide certainty about the commencement and expiry of limitation periods. After all, if time limitations are intended to foster certainty in administrative action the commencement and expiry of limitation periods ought to be able to be determined without undue difficulty.
The appropriate length of a time limitation period will depend, in part, on when time begins to run. It would normally be appropriate that a longer period apply when time begins to run at the time a decision is made. A shorter period may be appropriate where time begins to run at a specified point after the decision is made, such as upon delivery of a statement of reasons for a decision, which may be supplied several weeks after the decision is made. The appropriate length of a time limitation period will also depend on the character of the decision. Relevant factors include whether the decision is one which must or should be implemented promptly, the potential effect of the decision on third parties, and the time that might be reasonably required for the preparation and lodgment of an application for review. The relevance of such considerations will vary according to the circumstances of differing areas of administration. It is, therefore, most unlikely that a single time limitation period would be appropriate to all decisions. But the absence of a universal time limitation period might not necessarily provide support for the enactment of differing time limitation periods. The introduction of differing limitation periods might complicate and fragment procedures governing applications for judicial review. Changes of this nature would clearly be at odds with the strong trend of the last thirty years, which has been to simplify the procedures governing applications for judicial review.
The circumstances in which inflexible time limits are justifiable are probably quite limited. Inflexible time limits may be justified in areas where finality is particularly important. One area is cases involving approvals under planning legislation. Decisions of this nature may involve so many different parties and interests that finality assumes special importance. It is, however, difficult to justify an inflexible time limit, such as that imposed by s 4(1) of Victoria's Administrative Law Act 1978 (Vic), particularly if that limit can be circumvented by institution of review proceedings under the General Rulesof Procedure in Civil Proceedings 1996 (Vic).
Most would also agree that if a time limit of general application is to be imposed, the relevant court of supervisory jurisdiction should be empowered to extend the time in individual cases. There are several reasons why such a power ought to be granted to the courts. First, inflexible time limits operate as a restriction on the jurisdiction of the relevant court. The adverse effect of such a restriction is limited if courts are able to decide whether, in the circumstances of each case, it is appropriate to extend time. Secondly, a time limit restricts the ability of citizens to challenge unlawful administrative action. Restrictions of this nature are more consistent with the rule of law if they include a means by which courts may permit a challenge to proceed in an appropriate case, such as a power to extend time in individual cases. Federal legislation that imposes an inflexible time limitation may be criticised for the additional ground that it may impair the jurisdiction of the High Court under s 75 of the Commonwealth Constitution.
Under Australian legislation a discretionary power to extend the applicable time limit is usually open-ended and it is left to the courts to decide what considerations should and should not be taken into account in exercising the discretion. There is no doubt an expectation that the judges will be attentive to the policies which have informed the imposition of the time limit, and will also apply the guidelines developed by them more or less consistently. The principles developed by Wilcox J in the Hunter Valley144 case have provided a suitable vehicle for the development of such principles for applications for extensions of time under the ADJR Act.
Some may even be of the view that the court should also be empowered by statute to dismiss applications which have not been made promptly (or as soon as possible), notwithstanding that they have been made within the applicable time limit. A power of this nature might be exercised where an applicant has delayed lodgment of an application for judicial review without good reason, and a third party has acted in reliance upon a decision.
[∗]Emeritus Professor, Faculty of Law, Monash University.
[#]Lecturer, Faculty of Law, Monash University.
[1] The Law Reform Commission of Western Australia has recommended the enactment in that State of legislation modelled on that of the Commonwealth, with some variations. The Commission recommended the introduction of a specified time limit of six months for the commencement of applications for judicial review: Law Reform Commission of Western Australia, Judicial Review of Administrative Decisions, Report No 95 (2002) 31.
[2] [1983] UKHL 1; [1983] 2 AC 237.
[3] Ibid 280–1. See also Federal Airports Corporation v Aerolineas Argentinas [1997] FCA 723; (1997) 147 ALR 649,660 (Beaumont, Whiltlam and Lehane JJ); Law Commission of Great Britain, Administrative Decisions: Judicial Review and Statutory Appeals Report No 226 (1994) paras 2.3–2.7, 5.23–5.30; and Michael Fordham, Judicial Review Handbook (1994) 119–25.
[4] Supreme Court Act 1981 (UK) s 31(6); Rules of the Supreme Court O 53 r 4(1) ('RSC'). This rule was replaced in 1999 by Civil Procedure Rule r 54.5(1). The new rule does not differ in any material respect from its predecessor.
[5] Under the now repealed O 53 the validity of administrative acts could be challenged collaterally in a civil action, but acts which were reviewable under the Order could not be reviewed in a suit for declaration or injunction commenced as an ordinary civil action. It is not clear whether this requirement persists under the new Civil Procedure Rules 1998 (UK)('CPR'). See Halsbury’s Laws of England (4th ed, 2001 reissue) 1(1) Administrative Law, paras 70–1.
[6] 'Public Law and Private Law: Why the Divide? A Personal View' [1986] Public Law 220,230–1.
[7] Law Commission of Great Britain, above n 3, para 5.23. See also para 5.26. The Commission reported that there had been 'widespread support for the proposal in that a specific time limit was necessary to give effect to the principle of certainty' (para 5.23).
[8] Commonwealth, Commonwealth Administrative Review Committee, Report of theCommonwealth Administrative Review Committee, Parl Paper No 144 (1971) ('the Kerr Report')para 254.
[9]Ibid para 12.
[10] The inclusion of a 28 day time limit appears to have attracted no dissent in the debate of the Bill. There was, however, an amendment to include the requirement that time did not run if a person was not notified of a decision: Commonwealth, Parliamentary Debates, House of Representatives, 5 May 1977, 1646.
[11] Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act 1977 – Stage One, Report No 26, (1986) para 70. The Administrative Review Council did not comment directly on the time limitation in its subsequent report: Review of theAdministrative Decisions (Judicial Review) Act 1977 – The Ambit of the Act, Report No 32,(1989).
[12] JL Cadwell, 'Discretionary Remedies in Administrative Law' [1986] OtaLawRw 4; (1986) 6 Otago Law Review 245,252–3; Graham DS Taylor, Judicial Review: A New Zealand Perspective (1991) para 2.38.
[13] DJB Brown and JM Evans, Judicial Review of Administrative Action in Canada (1998) paras 5.1210 and 5.1252.
[14]Substantially the same as that conferred on the High Court by s 75(v) of the Constitution.
[15] Rules of the Supreme Court (NSW) r 54.6 (proceedings against justices of the peace). See also Environmental Planning and Assessment Act 1979 (NSW) ss 35 and 104A.
[16]Fraser v Robinson [1991] 3 NZLR 257, 260 (CA).
[17]Lee Bridges, George Meszaros and Maurice Sunkin, Judicial Review in Perspective (1995) 112.
[18]Ibid.
[19] CPR r 54.5(1). The rule provides that an application for judicial review must be lodged promptly and, in any event, within three months from the date at which the grounds for the application arose. The court has a discretion to extend this period. The complexities surrounding the preceding version of this rule, which was virtually the same as the current rule, are considered in Michael Beloff, 'Time, Time, Time It's On My Side, Yes It Is' in Christopher Forsyth and Ivan Hare (eds), The Golden Metwand and the Crooked Cord – Essaysin Honour of Sir William Wade (1998) 267.
[20] Administrative Law (4th ed, 1999) 794. See also Alistair Lindsay, 'Delay in Judicial Review Cases: A Conundrum Solved?' [1995] Public Law 417, 429. The House of Lords appeared to accept the force of these criticisms in R (Burkett) v Hammersmith and Fulham London BoroughCouncil [2002] 1 WLR 1593, 1611 (Lord Steyn).
[21]Ibid 794, 816.
[22]Law Reform Commission of Western Australia, above n 1, 31.
[23] Ibid 31–2.
[24] Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action (2nd ed, 2000) 577–81, 596–604.
[25]Ibid 671–3.
[26] Repealed in 1888.
[27]The cases are referred to in R v Tillett; Ex parte Newton (1969) 14 FLR 101, 115–7 (Fox J).
[28] High Court Rules O 55 r 17 ('RHC'); Rules of the Supreme Court (WA) O56 r 11 ('RSC (WA)'). Until 1992 O 72 of the Rules of the Supreme Court of Tasmania had the same effect.
[29] Rules of the High Court O 55 rr 17 and 30; RSC (WA) O 56 rr 11 and 36; Rules of the SupremeCourt (ACT) O 55 r 27.
[30] ADJR Act; s 11; Administrative Decisions (Judicial Review) Act 1989 (ACT) s 10; Judicial ReviewAct 1991 (Qld) ss 26 and 46; Rules of the Supreme Court (SA) r 98.06; General Rules of Procedurein Civil Proceedings (Vic) r 56.02; Rules of the Supreme Court (NT) Rule 56.02.
[31] CPR r 54.5(1). The English procedure for judicial review commences with an application for permission to apply for judicial review: CPR r 54(4). The procedure for permission is relatively simple: an application need only state an arguable claim for relief. On the law governing this requirement, see Halsbury’s Laws Of England, above n 5, 1(1) AdministrativeLaw, para 161.
[32] See Lindsay, above n 20, 421.
[33] For example, because the applicant lacks the requisite standing or because the decision in respect of which reasons are sought is one of a kind exempt from the general duty.
[34] On what is required to satisfy this requirement see Australian Foreman Stevedores Associationv Crone (1989) 20 FCR 377, 384–5 (Pincus J); Australian Petroleum Pty Ltd v ACCC (1997) 143 ALR 381 (Lockhart J); Fischer v Commonwealth (1997) 48 ALD 15 (Branson J); MarrickvilleCouncil v Minister for Environment, Sport and Territories [1996] FCA 851; (1996) 45 ALD 39 (Keifel J); Stergis vBoucher (1989) 86 ALR 174 (Hill J); Tredex Australia Pty Ltd v Button (1986) 68 ALR 645 (Jenkinson J); Worthley v Australian Securities Commission [1993] FCA 287; (1993) 42 FCR 578 (Gummow, Hill and Cooper JJ); Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; (2000) 61 ALD 593, 600–1 (Black CJ, Sundberg, Katz and Hely JJ).
[35]See below, text accompanying nn 135–43.
[36] For example, planning legislation which requires grant of approval of proposed changes in land use.
[37] See, eg, CPR r 54.5(3). This rule specifies that the general time limit imposed by other parts of the CPR is not applicable when another enactment provides for a shorter time for commencing an application for judicial review.
[38] The Law Reform Commission of Western Australia has suggested that time limits, at least ones of short duration such as 28 days, may actually increase the work of the courts by causing applications for extension of time: Law Reform Commission of Western Australia, above n 1, 31. The Commission did not, however, provide any direct evidence in support of this view.
[39] Instances of delay related to the legal process are explained at text accompanying nn 106–109 below.
[40]The cases are listed in Aronson and Dyer, above n 24, 699.
[41] Ex parte Thomas; Re Arnold (1966) 84 WN (Pt 1) NSW 493; R v Tillett; Ex parte Newton (1969)14 FLR 101; Re Bassett and Government of Canada (1987) 35 DLR (4th) 537 (Sask CA); Johnstonv Law Society (1991) 8 DLR (4th) 725 (Prince Edward Island, Supreme Ct, Appeal Divn); Brown and Evans, above n 13, para 5: 1110.
[42] Keller v Bayside City Council [1996] 1VR 357 (Batt J); Quality Packaging Service Pty Ltd v City ofBrunswick [1996] VR 829 (Beach J); Kuek v Victorian Legal Aid [1999] VSCA 44; [1999] 2 VR 331, 336 (CA). The Act does not establish an exclusive mode of proceeding to challenge the validity or decisions reviewable under the Act. Such decisions are also reviewable under r 56 of the Supreme Court's General Rules of Procedure in Civil Proceedings (1986 as amended). These rules of court were 'ratified, validated and approved' by s 4(1) of the Supreme Court (Rules of Procedure) Act 1986 (Vic).
[43] Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 45 ALD 104 (Merkel J);Quevedo-Navarro v MIMA [1999] FCA 83 (Wilcox, Hill & Madgwick JJ).
[44] Smith v East Elloe Rural District Council [1956] UKHL 2; [1956] AC 736; R v Secretary of State for theEnvironment; Ex parte Ostler [1976] EWCA Civ 6; [1977] 1 QB 122 (CA). English cases in which the interpretation in Ostler was followed are listed in HWR Wade and CF Forsyth, Administrative Law (8th ed, 2000) 718 and Richard Gordon, Judicial Review: Law and Procedure (2nd ed, 1996) 122–4.
[45] Baulkham Hills Shire Council v Minister for Planning and Environment (1982) 49 LGRA 236,252–3 (Cripps J). Contra Environmental Protection Authority v Aircair Narrabri Pty Ltd (1997)99 LGERA 1 (Bignold J).
[46]Londish v Knox Grammar School (1999) 99 LGERA 1, 4 (Mason P, Meagher and Stein JJA).
[47] This interpretation of the effect of the relevant ouster clause involved application of what has come to be known as the Hickman principle, enunciated by Dixon J in R v Hickman; Exparte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, 615. On this principle and its applications see Aronson and Dyer, above n 24, 966–80.
[48] Mahfoud v Minister for Immigration, Local Government and Ethnic Affais [1993] FCA 313; (1993) 33 ALD 609, 612 (Beazley J). See also Re Bassett and Government of Canada (1987) 35 DLR (4th) 537 (Sask CA).
[49]Ibid.
[50] Re Ostrowski v Saskatchewan Beef Stabilization Board Appeals Committee (1993) 101 DLR (4th)511.
[51] (2003) 211 CLR 476 ('Plaintiff S157/2002').
[52] Certiorari and declarations may be issued if they are ancillary relief under s 75(v) of the Constitution. They may also be issued if the High Court’s jurisdiction under s 75(iii) of the Constitution has been invoked or when the Court is exercising a jurisdiction conferred by legislation made pursuant to s 76 of the Constitution.
[53] Later subsections make some exceptions.
[55]Ibid 510 [91](Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[56] Ibid 537 [173]. Callinan J had regard to the fact that applicants for review of decisions under the Migration Act might be incapable of speaking English and might be in detention in places remote from capital cities. He was also influenced by the fact that the Court would not be able to extend time under O 60 r 6: ibid, 537 [174]. Callinan J did not consider Federal Court cases which have held that there is no general constitutional prohibition upon mandatory time limits for the commencement of legal proceedings by people held in detention: Abidin v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 237, 242–3 (Branson, North and Giles JJ).
[57] Ngu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 54; (2003) 37 AAR 107 (Carr, Merkel and Hely JJ).
[58] (2003) 211 CLR 476, 538 [176].
[59]Ibid 537 [173]–[174].
[60] Callinan J suggested that the defect in s 477 might be cured if the Court was authorised to extend the 35 day time limit: ibid, 538 [176].
[61] Where the relevant rules of the High Court are discussed, they are normally noted without any comment on their validity, or possible invalidity. See, eg, Re Minister for Immigrationand Multicultural and Indigenous Affairs; Ex parte Applicant S134/2002 [2003] HCA 1; (2003) 211 CLR 441, 452 (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ); Re Commonwealth of Australia; Exparte Marks [2000] HCA 67; (2000) 177 ALR 491 (McHugh J).
[62]Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510.
[63]See above, text accompanying nn 43–47.
[65] CPR r 54.5(1); Judicial Review Act 1991 (Qld) s 46; RSC (SA) r 98.06. Even if the applicable legislation does not stipulate that applications for review be lodged promptly or as soon as possible, courts of supervisory jurisdiction have claimed authority to dismiss applications for judicial review which, although lodged within the time specified by legislation, have not, in the courts' opinion, been lodged as promptly as the circumstances required: see eg Ex parte Savage [1989] WAR 46, 52 (Nicholson J); R v Herrod; Ex parte Leeds City DistrictCouncil [1976] QB 540, 574–5; [1978] AC 403, 419–20, 421, 422, 425.
[66] The cases on what may or may not constitute a matter of substantial importance, or impose substantial inustice upon, an applicant do not yield a settled principle. See, eg, Russo vVicRoads [2001] VSC 327; (2001) 34 MVR 343, 344 (Beach J) where an applicant sought review of an order of suspension of a driving licence. The court refused the application on the basis that the suspension would cause hardship but not necessarily 'substantial injustice'. The court suggested that 'substantial injustice' involved more than hardship.
[67] This statement is true in respect of the discretion to extend time conferred by s 11 of the federal ADJR Act and its counterparts in s 10 of the ACT Act of the same name, and in ss 26 and 46 of Queensland's Judicial Review Act 1991 and s 23 of the Judicial Review Act 2000(Tas). The statement is also true in respect of relevant rules of court regarding proceedings before the High Court, and before the Supreme Courts of South Australia, Victoria, Western Australia and the Northern Territory, and some mandamus proceedings before the Supreme Court of the Australian Capital Territory.
[68]See, eg, Chief Constable of the North Wales Police v Evans [1982] UKHL 10; [1982] 1 WLR 1155, 1157, 1171.
[69] See, eg, Lawendy v General Practice Recognition Appeal Committee [2000] FCA 946; (2000) 62 ALD 667 (Heerey J). See also Clive Lewis, 'Judicial Review, Time Limits and Retrospectivity' [1987] Public Law 21.
[70] See Smith v East Elloe Rural District Council [1956] UKHL 2; [1956] AC 736; R v Secretary of State for theEnvironment; Ex parte Ostler [1977] and cases referred to above n 44.
[71]R v Secretary of State for Health; Ex parte Furneaux [1994] 2 All ER 652, 658.
[72] See, eg, ibid.
[73] The case law has also been influential in relation to the exercise of statutory powers to extend the time for lodging administrative appeals: see, for example, the authorities cited in DC Pearce & MN Allars, Australian Administrative Law Service – Volume 1, paras 229A–230.
[74] Nor do s 10 of the Administrative Decisions (Judicial Review) Act 1989 (ACT), ss 26 and 46 of the Judicial Review Act 1991 (Qld) and s 23 of the Judicial Review Act 2000 (Tas).
[75] On what have been regarded or not regarded as special circumstances see Denysenko vDessau [1996] VicRp 65; [1996] 2 VR 221 (Beach J); Portelli v Stewart (1996) 10 VAR 275 (Vic SC); Glasgow vChurch (Deputy Commissioner of Police) (1997) 12 VAR 236 (Beach J); Kuek v Victoria Legal Aid[1999] VSC 46; (1999) 15 VAR 35 (Smith J); Mann v Medical Practitioners Board [2002] VSC 256; (2002) 18 VAR 458 (Osborn J). In No 2 Pitt Street Pty Ltd v Wodonga Rural City Council & Weatheralls Wodonga Hotel Pty Ltd [1999] VSC 133; (1999) 104 LGERA 239, 247 Balmford J held that a requirement of exceptional circumstances was 'more extreme [and] further from' a requirement of special circumstances.
[76]See below, text accompanying nn 136–141.
[77] Barrett v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 269; (1989) 18 ALD 129 (Pincus, Gummow and Lee JJ); Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 (Black CJ, Gray and Burchett JJ); Harris v Moore (1993) 34 ALD 333; Minister for Immigration and Ethnic Affairs v Polat [1995] FCA 1204; (1995) 57 FCR 98 (Davies, Whitlam and Branson JJ); Worthley v Australian SecuritiesCommission [1993] FCA 287; (1993) 42 FCR 578 (Gummow, Hill and Cooper JJ).
[78] The principles are enunciated in House v The King (1936) 55 CLR 499; Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, 519–20 (Stephen J); Adam P Brown Male Fashions Pty Ltd v Phillip MorrisInc [1981] HCA 39; (1981) 148 CLR 170, 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ); Australian SecuritiesCommission v Somerville (1994) 51 FCR 38 (Black CJ, Ryan and Olney JJ); Southern CrossExploration NL v Fire and All Risks Insurance Co Ltd [No 2] (1990) 21 NSWLR 200 (CA);Garrard (t/a Arthur Anderson and Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662, 664–5 (Kirby ACJ).
[79] Attorney-General (NT) v Minister for Aboriginal Affairs (1987) 16 FCR 267 (FC); Hunter ValleyDevelopments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344, 349–50 (Wilcox J); Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 (Keely J).
[80](1984) 3 FCR 344 ('Hunter Valley').
[81] Duff v Freijah [1982] FCA 159; (1982) 43 ALR 479 (Northrop J); Ralkon Agricultural Co Pty Ltd v AboriginalDevelopment Commission [1982] FCA 153; (1982) 43 ALR 535 (Keely J); Lucic v Nolan (1982) 45 ALR 411(Fitzgerald J); Doyle v Chief of General Staff [1982] FCA 124; (1982) 42 ALR 283 (Fisher J); Hickey v AustralianTelecommunications Commission (1983) 47 ALR 517 (Lockhard J); Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528; Chapman v Reilly (unreported, FCA, Neaves J, 9 Dec 1983); Douglas v Allen [1984] FCA 77; (1984) 1 FCR 287 (Morling J).
[82](1984) 3 FCR 344, 310.
[83]Haining v Drake (1998) 87 FCR 248, 251 (Wilcox and Marshall JJ).
[84] The reports of administrative tribunals are replete with instances in which the HunterValley principles have been used to determine applications for an extension of time to lodge an application for review. Recent such cases from the Commonwealth Administrative Appeals Tribunal include Re Ciaglia & Federal Commissioner of Taxation (Cth) [2002] AATA 323; (2002) 49 ATR 1198; Re Secretary, Department of Family and Community Services and Nixon [2002] AATA 428; (2002) 69 ALD 376; Re Hull & Comcare [2001] AATA 928; (2001) 66 ALD 427; Re Ryan & Australian Postal Commission [2001] AATA 920; (2001) 66 ALD 493.
[85] Hunter Valley (1984) 3 FCR 344, 348.
[86]Ibid.
[87] See, eg, Vel v Human Rights and Equal Opportunity Commission (1997) 47 ALD 219 (Branson J); Haining v Drake (1998) 87 FCR 248, 250 (Wilcox and Marshall JJ).
[88] Community and Public Sector Union v Woodward, Chief Executive Officer, Australian CustomsService (1997) 76 FCR 551 (Branson J); Kim Hyun Tai v Bolkus (1996) 42 ALD 249 (Hill J). A frequently cited case on this point is Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 (Black CJ, Gray and Burchett JJ). That case concerned an application for an extension of time to lodge an application for merits review rather than judicial review. A Full Court of the Federal Court concluded that an explanation for delay in commencing proceedings in the Administrative Appeals Tribunal was desirable but not essential. The Court drew support for this conclusion from cases concerning judicial review. The reasoning of the Full Court is, therefore, relevant to applications for judicial review.
[89] The extent of the delay is also relevant. See Castles v Briot (1989) 19 ALD 153 (Morling, Pincus and O’Loughlin JJ); Corlette v Mackenzie [1995] FCA 1512; (1995) 62 FCR 584 (Beazley J); Delkou vRepatriation Commission [1994] FCA 1025; (1994) 32 ALD 477 (Beazley J); FJ Hospital Enterprises Pty Ltd vMinister for Community Services (1987) 75 ALR 323 (Jenkinson J); Fischer v Commonwealth (1997) 48 ALD 15 (Branson J); Galinski v Minister for Immigration, Local Government andEthnic Affairs [1994] FCA 943; (1993) 33 ALD 757 (French J); Harris v Moore (1993) 34 ALD 333 (Ryan, Foster and Cooper JJ); Kim Hyun Tai v Bolkus (1996) 42 ALD 249 (Hill J); Jennings v Minister forImmigration, Local Government and Ethnic Affairs [1992] FCA 421; (1992) 28 ALD 475 (Olney J); Newby vMoodie (1988) 83 ALR 523 (Sheppard, Morling and Pincus JJ); Roderick v Telstra CorporationLtd (1997) 50 ALD 442 (Mansfield J); 118 Vale Street Pty Ltd v Minister for Community Servicesand Health (1991) 24 ALD 419 (Gray J); BGL Corporate Solutions Pty Ltd v AustralianPrudential Regulation Authority [1999] FCA 420; (1999) 55 ALD 643 (Heerey J).
[90]Highway Hotel Pty Ltd v The City of Bunbury [2001] WASCA 385, [58] (Templeman J).
[91] See FJ Hospital Enterprises Pty Ltd v Minister for Community Services (1987) 75 ALR 323(Jenkinson J).
[92] See Barrett v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 269; (1989) 18 ALD 129 (Pincus, Gummow and Lee JJ); Manoher v Minister for Immigration, Local Government andEthnic Affairs (1991) 24 ALD 410 (Lee J); Tonga v Immigration Review Tribunal (1993) 31 ALD 699 (Beaumont J); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 537 [176](Callinan J).
[93] Broadbent v Civil Aviation Authority (1991) 26 ALD 211 (Pincus J); Comcare v A’Hearn (1993)45 FCR 411 (Black CJ, Gray and Burchett JJ); Delkou v Repatriation Commission [1994] FCA 1025; (1994) 32 ALD 477; Devereaux v Commissioner of Taxation (1986) 10 FCR 550; Harris v Moore (1993) 34 ALD 333 (Ryan, Foster and Cooper JJ); Manoher v Minister for Immigration, Local Government andEthnic Affairs (1991) 24 ALD 410 (Lee J); Lawendy v General Practice Recognition AppealCommittee [2000] FCA 946; (2000) 62 ALD 667 (Heerey J).
[94]Kumar v Minister for Immigration and Multicultural Affairs [2000] FCA 243; (2000) 61 ALD 156, 164 (Emmett J).
[95]Lawendy v General Practice Recognition Appeal Committee (2000) , 671 (Heerey J).
[96] In Lucic v Nolan (1982) 45 ALR 411, 417 Fitzgerald J said that delay in obtaining legal aid is not relevant except in exceptional circumstances. See also R v Stratford-on-Avon DistrictCouncil; Ex parte Jackson [1985] 3 All ER 769; Cf Johns v Australian Securities Commission (1992) 35 FCR 16 (Heerey J).
[97] See, for example, Jennings v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 421; (1992) 28 ALD 475 (Olney J); Galinski v Minister for Immigration, Local Government and EthnicAffairs [1994] FCA 943; (1993) 33 ALD 757 (French J).
[98] Hunter Valley (1984) 3 FCR 344, 348.
[99]Ibid, 348–9.
[100] An exception to this has arisen in refugee law. Applicants for protection visas who receive an unfavourable decision from the Refugee Review Tribunal often request the Minister to reconsider the decision. The Federal Court has held that such action may be characterized as an indication that the applicant was prepared to accept the tribunal decision and would, therefore, not seek judicial review of the decision. This reasoning counts against an applicant who seeks an extension of time. See, eg, Applicant A2 of 2002 v Minister forImmigration and Multicultural and Indigenous Affairs [2003] FCA 576 (von Doussa J); Daniel vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21 (Goldberg J).
[101] See Intervest Corporation Pty Ltd v Commissioner for Taxation [1984] FCA 297; (1984) 3 FCR 591 (Smithers J);Mitco PB Pty Ltd v Chief Executive Officer of Customs [1999] FCA 712 (Burchett J); Chumbairuxv Minister for Ethnic Affairs (1986) 75 FCR 480 (Burchett J); Cf 118 Vale St Pty Ltd v Ministerfor Community Services and Health (1991) 24 ALD 419 (Gray J).
[102] These considerations were raised by Callinan J in Plaintiff S157/2002 v Commonwealth (2002) 211 CLR 476 at 537 [174]. While Callinan J was referring to the possible invalidity under s75(v) of the Commonwealth Constitution of a time limit contained in the Migration Act 1958(Cth), these problems can obviously occur in other areas.
[103]Hunter Valley (1984) 3 FCR 344, 349.
[104] Manoher v Minister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 410 (Lee J).
[105] Harris v Moore (1993) 34 ALD 333, 338–9 (Ryan, Foster and Cooper JJ); Vel v Human Rightsand Equal Opportunity Commission (1997) 47 ALD 219 (Branson J); Victorian BroadcastingNetwork (1983) Pty Ltd v Minister for Transport and Communications (1990) 21 ALD 689 (Hill J).
[106]Principle 3 overlaps with principle 4.
[107]Hunter Valley (1984) 3 FCR 344, 349.
[108]Ibid.
[109] Victorian Broadcasting Network (1983) Pty Ltd v Minister for Transport and Communications (1990) 21 ALD 689 (Hill J); Seiler v Minister for Immigration, Local Government and EthnicAffairs [1994] FCA 878; (1994) 48 FCR 83, 96 (French J). See also Supreme Court Act 1981 (UK) s 31(6).
[110] Jennings v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 421; (1992) 28 ALD 475, 489 (Olney J).
[111] Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524 (Beaumont J); Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 (Keely J).
[112] FJ Hospital Enterprises Pty Ltd v Minister for Community Services (1987) 75 ALR 323 (Jenkinson J).
[113]Harris v Moore (1993) 34 ALD 333 (Ryan, Foster and Cooper JJ).
[114]Lindsay v Rose (1996) 44 ALD 570 (Branson J).
[115]Hunter Valley (1984) 3 FCR 344, 349.
[116] Barrett v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 269; (1989) 18 ALD 129, 130 (Pincus, Gummow and Lee JJ); Seiler v Minister for Immigration, Local Government and EthnicAffairs [1994] FCA 878; (1994) 48 FCR 83, 98 (French J).
[117] In Lawendy v General Practice Recognition Appeal Committee [2000] FCA 946; (2000) 62 ALD 667, 671 Heerey J observed that the prospect of success of the substantive case was usually 'a major question' in an application for extension of time.
[118] Barbaro v Human Rights and Equal Opportunity Commission (1998) 51 ALD 285 (O’Loughlin J);Fisher v Commonwealth (1997) 48 ALD 15 (Branson J); Hakim v Minister for Immigration, LocalGovernment and Ethnic Affairs (1992) 29 ALD 193 (Heerey J); Moskal v Minister forImmigration and Ethnic Affairs [1994] FCA 922; (1994) 35 ALD 64 (Whitlam J); Jennings v Minister forImmigration, Local Government and Ethnic Affairs [1992] FCA 421; (1992) 28 ALD 475 (Olney J); Pinchback vWilenski (1983) 6 IR 111 (Neaves J).
[119]Johns v Australian Securities Commission (1992) 35 FCR 16 (Heerey J).
[120] See, eg, Lawendy v General Practice Recognition Appeal Committee [2000] FCA 946; (2000) 62 ALD 667 (Heerey J). Despite agreement on the substantive merits of the application, the respondent opposed the application on other grounds. Heerey J’s decision to grant the application was strongly influenced by the agreement on the merits of the case.
[121]Hunter Valley (1984) 3 FCR 344, 349.
[122]Lawendy v General Practice Recognition Appeal Committee [2000] FCA 946; (2000) 62 ALD 667 (Heerey J).
[123]Hunter Valley (1984) 3 FCR 344, 348.
[124] Reid v Nairn [1985] FCA 137; (1985) 6 FCR 261 (Fisher J); Newby v Moodie (1988) 83 ALR 523 (Sheppard, Morling and Pincus JJ); Stergis v Boucher (1989) 86 ALR 174 (Hill J); Johnson v Holmes (1997)49 ALD 430 (O’Loughlin J).
[125]Castles v Briot (1989) 19 ALD 153, 160–1 (Morling, Pincus and O’Loughlin JJ).
[126] Hunter Valley (1984) 3 FCR 344, 348.
[127][2000] Ed CR 117 ('Rockdale Case').
[128]R (Burkett) v Hammersmith and Fulham London Borough Council [2002] 1 WLR 1593, 1600.
[129] Leading cases are Caswell v Dairy Produce Quota Tribunal for England and Wales [1990] UKHL 5; [1990] 2 AC 738 and R v Criminal Injuries Board; Ex parte A [1999] UKHL 21; [1999] 2 AC 330. These cases concerned applications made while the RSC O 53 was in force, but in R (Burkett) v Hammersmith and Fulham London Borough Council [2002] 1 WLR 1593 the House of Lords did not suggest that the enactment of CPR r 54 has altered the law in this respect. See also Lindsay, above n 20.
[130] The Court of Appeal has held that s 31(6) does not require that there be a causal connection between any delay and the potential prejudice. There must rather be a connection between the potential prejudice and the grant of relief sought: R v Secretary of State for Health; Exparte Furneaux [1994] 2 All ER 652, 657.
[131] In its report on Administrative Law: Judicial Review and Statutory Appeals, above n 3, [5.26], the English Law Commission recommended that s 31(6) of the Supreme Court Act 1981 (UK)be repealed and be incorporated in the RSC.
[132] Occasionally the judge who grants an application for extension of time goes on to deal with the substantive issues.
[133] Common reasons for the refusal of relief on discretionary grounds include the futility of the grant of relief: Doyle v Chief of General Staff [1982] FCA 124; (1982) 42 ALR 283 (Fisher J); or that a more appropriate remedy is available to the applicant: Newby v Moodie (1988) 83 ALR 523 (Sheppard, Morling and Pincus JJ).
[134] This may be true in areas where courts face a large number of applications. An example is s 477 of the Migration Act 1958 (Cth), which is discussed above, text accompanying n 57. It must, however, be conceded that the judges of the Federal Court do not appear to have welcomed this and other restrictions that have been imposed on the review of refugee decisions.
[135]See above, text accompanying nn 24–5.
[136]R (Burkett) v Hammersmith and Fulham London Borough Council [2002] 1 WLR 1593, 1600.
[137] Comparable provisions appear in the Administrative Decisions (Judicial Review) Act 1989(ACT) s 10, Judicial Review Act 1991 (Qld) s 23 and the Judicial Review Act 2000 (Tas) s 23.
[138] See also Administrative Decisions (Judicial Review) Act 1989 (ACT) s 10, Judicial Review Act
1991 (Qld) s 26 and Judicial Review Act 2000 (Tas) s 23.[142] For examples of the application of s 11(4), see Newby v Moodie (1988) 83 ALR 523 (Sheppard,Morling and Pincus JJ); Stergis v Boucher (1989) 86 ALR 174 (Hill J); Australian ForemanStevedores Association v Crowe (1989) 20 FCR 377 (Pincus J); Worthley v Australian SecuritiesCommission [1993] FCA 287; (1993) 42 FCR 578; Federal Airports Corporation v Aerolineas Argentinas [1997] FCA 723; (1997) 147 ALR 649 (Beaumont, Whitlam and Lehane JJ).
[143] See Australian Foreman Stevedores Association v Crowe (1989) 20 FCR 377 (Pincus J) where the decision sought to be contested was one to grant an import licence to a third party.
[144] (1984) 3 FCR 344.
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