Re Ross Duff and Others v Frederick H Freijah and Others [1982] FCA 159; (1982) 62 FLR 280 Vg (11 August 1982)

FEDERAL COURT OF AUSTRALIA

Re: ROSS DUFF AND OTHERS
And: FREDERICK H. FREIJAH AND OTHERS [1982] FCA 159; (1982) 62 FLR 280
VG Nos. 79-87 of 1982
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.(1)

CATCHWORDS

Administrative Law - application for order of review - application for extension of time- whether time in which to lodge application with Registry can be granted in an application which has been lodged out of time - long delay - not explained by applicant - exercise of discretion.

Administrative Decisions (Judicial Review) Act 1977 ss.5(1), 8, 11(1)(c)

Federal Court of Australia Act 1976 s.19

Administrative Law - Applications for orders of review - Application seeking extension of time - Whether court had power to extend time for lodging applications - No satisfactory explanation of delay in lodging applications - Exercise of discretion by court - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 5, 8, 11 - Federal Court of Australia Act 1976 (Cth), s. 19 - Federal Court Rules, O. 54, r. 4; O. 3, r. 3 - Public Service Act 1922 (Cth), s. 32A - Conciliation and Arbitration Act 1904 (Cth). The fifteen applicants were employed in the Department of Social Security under the Public Service Act 1922 (the Act). Each applicant was a member of the Administrative and Clerical Officers' Association which was an organization of employees under the Conciliation and Arbitration Act 1904, as amended. During November 1981 each applicant refused to perform normal duties because work bans were in force and, in purported exercise of powers under s. 32A of the Act their superiors declared that each applicant was not to be paid a salary.

On 22nd June, 1982, nine applications for an order of review, involving the fifteen separate applicants, were lodged pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977, as amended, (the Judicial Review Act).

The persons making the declarations, together with the persons comprising the Public Service Board of Commissioners, were named as respondents. In each application the latest prescribed period ended on 23rd December, 1981, and orders were sought by motion on notice extending the time for making each application until 22nd June, 1982. The respondents to each application filed a notice of objection to competency on the grounds that the applications had been lodged out of time.

Held: (1) The court had power to make an order under s. 11(1)(c) of the Judicial Review Act, extending the time for lodging an application under s. 11 of the Judicial Review Act, although that application had been lodged after the expiration of the prescribed period.

Doyle v. Chief of General Staff [1982] FCA 124; (1982) 42 ALR 283, followed.

Tung v. Augustine, (1973) VR 616, distinguished.

Streimer v. Tamas, [1981] FCA 123; (1981) 54 FLR 253, referred to.

(2) The court was not satisfied that the applicants had satisfactorily explained the delay in lodging their applications and the delays of the association were considered to be the delay of the applicants.

(3) The court would not exercise its discretion in favour of the applicants, although they were not precluded from making application on fresh material.

(4) Accordingly, the motion for further time within which to lodge the applications would be refused.

(5) The hearing of the objections to competency and the hearing for directions would be adjourned sine die.

HEARING

Melbourne, 1982, July 30; August 11. 11:8:1982
APPLICATION. MOTION.

The facts appear in the judgment.

S.R. Marshall, for the applicants in the motion.

G.R.G. Crossley, for the respondents to the motion.
Cur. adv. vult.

Solicitors for the applicants: Holding Redlich & Co.

Solicitor for the respondents: B.J. O'Donovan, Commonwealth Crown

Solicitor.

J.D. WHITEHEAD
Orders accordingly.

DECISION

These nine applications for an order of review involving fifteen separate applicants were each commenced on 22 June 1982 when each application was lodged with the Victoria District Registry of the Federal Court of Australia. At all relevant times each applicant was a person employed in the Australian Public Service, "the Service", under the Public Service Act 1922, as amended, "the Act", in the Department of Social Security. Each applicant is a member of the Administrative and Clerical Officers Association, "the Association", an organization of employees under the Conciliation and Arbitration Act 1904, as amended. During the month of November 1981 each of the applicants, pursuant to bans on work, was refusing to perform all the duties normally performed. On different dates between 9 and 26 November 1981 inclusive persons in the Service superior to each of the applicants respectively, in purported exercise of powers under s.32A of the Act, declared that each applicant respectively was not to be paid salary. Within Victoria some ninety declarations were made affecting some ninety officers or employees in the Service.

Each of the applications herein is brought under the Administrative Decisions (Judicial Review) Act 1977, as amended, "the Judicial Review Act". In each application the person making the declaration, together with the persons comprising the Board of Commissioners, "the Public Service Board", constituted under the Act, were named as respondents. Each application is brought under s.5(1) of the Judicial Review Act and reliance is placed upon the grounds specified in paragraphs 5(1)(b), (d) and (f). In each application, an order is sought extending the time in which the application may be made to 22 June 1982. The respondents to each application have filed a notice of objection to competency on the grounds that the application had not been lodged within the time prescribed by s.11 of the Judicial Review Act or within such further time as the Court has allowed, Order 54, rule 4, Federal Court Rules. In each application the applicants have given notice of motion seeking an order that the time within which the application may be lodged be extended up to and including 22 June 1982.

Each of the applications is before the Court for directions and the motions and the objections to competency came on for hearing before the Court at the same time. With the consent of the parties the motions and the objections to competency were heard together before directions being given.

Counsel for the respondents raised a preliminary objection, namely that the Court had no power to extend the time for lodging the applications after the applications had been lodged. He conceded, correctly in my opinion, that if this objection was upheld, there would be nothing to prevent prospective applicants from seeking an extension of time in which to lodge applications arising from the same circumstances. After hearing submissions the Court ruled that it had the power to extend the time, but would publish its reasons later. Those reasons are now set out.

Under s.5(1) of the Judicial Review Act, a person who is aggrieved by a decision to which that Act applies may apply to the Court for an order of review in respect of that decision on any one or more of the grounds specified in that sub-section. Under s.8, the Court has jurisdiction to hear and determine applications made to the Court under the Judicial Review Act, see also s.19 Federal Court of Australia Act 1976, as amended. The relevant parts of s.11 of the Judicial Review Act are set out:

"11.(1) An application to the Court for an order of review -

(a) shall be made in such manner as is prescribed by Rules of Court;

(b) shall set out the grounds of the application; and

(c) shall be lodged with a Registry of the Court and . . . shall be so lodged within the prescribed period or within such further time as the Court (whether before or after the expiration of the prescribed period) allows.
. . .
(3) The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after-
(a) . . . the day on which a document setting out the terms of the decision is furnished to the applicant; . . ."

In the present applications the latest prescribed period ended on 23 December 1981. Each application was lodged on 22 June 1982 before the Court had allowed any further time within which each application could be lodged.

The only source of power enabling the Court to extend the time within which an application under s.5 of the Judicial Review Act shall be lodged is that contained in s.11(1)(c) of that Act. The prescribed period is not fixed by the Rules of the Federal Court or by any judgment or order, and thus Order 3, rule 3 of the Rules has no application.

The substance of the contentions of counsel for the respondents was that the requirements of s.11(1)(a) and (c) were mandatory and he stressed the words that the application "shall be lodged" within the prescribed period. He contended that where the prescribed period had expired in the absence of a further time having been allowed by the Court, a person was not entitled to lodge an application and any application wrongly lodged could not be validated by an order of the Court having retrospective effect. In this regard he relied also on the words "whether before or after the expiration of the prescribed period" in s.11(1)(c) as indicating that the extension of time must have been granted before the application was lodged since no extension would be required to lodge an application before the expiration of the prescribed period. In my opinion those words do not assist the contentions of counsel. They are included in the section to make it clear that the power to allow further time does not lapse once the prescribed period has expired. The problem that has been overcome by the use of those words is well illustrated by the following passage from the judgment of Fullagar J. in Esso Research and Engineering Company v. Commissioner of Patents [1960] HCA 31; (1960) 102 C.L.R. 347 at p.351:

"I think I would concede that a provision for 'extending' a prescribed period during which a thing may be done should prima facie be construed as operating only while the originally prescribed period is still current. It may be said that, when the originally prescribed period has expired, there is nothing to 'extend'. But, while this view may be said to represent the most natural meaning of the word 'extend', that word is by no means incapable of a wider reference. It is by no means a misuse of language to speak of what is really the prescription of a new period as an 'extension' of the period originally prescribed. Cases are numerous in which the conferring on a tribunal of a power to 'extend' the time for doing a thing is accompanied by an express provision that an 'extension' may be granted although the originally prescribed period has expired. An example ready to hand is s.160 of the Patents Act, sub-s. (2) of which says that 'the time required for doing an act . . . may be extended under this section although that time has expired'. While these cases suggest that a power to extend time without more is prima facie to be regarded as a power to extend a period still current, they also indicate that an enlargement of time after the expiration of a prescribed period is quite naturally regarded as itself an 'extension'."

In support of his primary contention counsel relied on decisions of the Supreme Court of Victoria involving the application of State Acts. Section 5(6) of the Limitation of Actions Act 1958 (Vic.) provides that no action for damages for negligence where the damages claimed include damages in respect of personal injury to any person shall be brought after the expiration of three years after the cause of action accrued. Section 23A of that Act contains provisions empowering a court to order the period within which an action or the cause of action may be brought to be extended provided the claimant can establish certain facts. The section contains provisions prescribing the method by which an application for an extension of time is to be made on notice to the persons against whom the claimant claims to have the cause of action. Little J. in Tung v. Augustine (1973) V.R. 616 held that an order could not be made with respect to an action already commenced and which was barred by s.5(6). A similar result is illustrated by Beugelaar v. City of Springvale (1969) V.R. 3. In that case s.882 Local Government Act (1958) as then in operation, was under consideration. It provided that certain types of action against municipalities may be brought in the County Court and that such an action "shall not be brought in the Supreme Court" except where a Judge of the Supreme Court on the application of either party ordered that the action "be brought in the Supreme Court, or if already commenced, be transferred to the Supreme Court". Starke J. held that that section did not empower a Judge of the Supreme Court to so order where an action had been commenced in the Supreme Court without prior order. A consideration of these two cases, together with a consideration of the many authorities cited in them, illustrates that the relevant statutory provisions being considered in those authorities related to future proceedings. This is best illustrated by an extract from the judgment of Little J. in Tung v. Augustine. After referring to a contention made on behalf of the plaintiff that whilst the action already commenced could be defeated by s.5(6) of the Limitation of Actions Act, the writ was not a nullity and an order could in law be subsequently made under s.23A which would operate retrospectively and deprive the defendant of such a defence in that action, his Honour said at p.624:

"This contention, in my opinion, is unsound and fails to take into account the whole structure of the section. It may be observed at once that whilst s.23A applies to causes of action which accrued before the Act came into operation (vide sub-section (1)) it does not contain a provision empowering the court to make an order having a retrospective operation. Section 23A is not directed to an action already commenced or to nullifying in an existing action a plea made under s.5(6). The section enacts a procedure which enables a claimant to make application to a court ot obtain an order extending the time within which he may commence an action. The power given to the court on an application under the section is to order that the period within which an action may be brought be extended. The language is language of futurity. It contemplates an action to be commenced in the future and commenced pursuant to an order made under that section."

In this respect, the language of s.11(1)(c) Judicial Review Act is not that of futurity. The language is not to be equated with a statute of limitations barring an action except where a court extends the time within which the action may be commenced. The section imposes a procedural requirement with respect to the time in which the application under s.5 is to be lodged. The lodging of an application after the expiration of that prescribed period does not make the application a nullity. The provision is not in the nature of a defence that can be raised by a respondent. The section confers an unfettered discretion upon the Court to allow further time within which the application may be lodged. It does not prescribe the method by which an application for further time is to be made nor does it contain provisions stating that notice must be given to prospective respondents before any such application is made. It does not prescribe the method by which a prospective applicant under s.5 must first obtain an order for extension of time before the application is lodged under s.11. In my opinion the Court has power to make an order under s.11(1)(c) extending time for the lodging of an application under s.11, even though that application had been lodged after the expiration of the prescribed period. See also Streimer v. Tamus (1981) 37 A.L.R. 211.

My opinion is consistent with the past practice of the Court. This practice is illustrated by Doyle v. The Chief of the General Staff, Fisher J., 8 July 1982, unreported.

Thus it is necessary for the Court to exercise the discretion conferred by s.11(1)(c) of the Judicial Review Act. That discretion is unfettered, but it must be exercised judicially on relevant facts. None of the applicants has given evidence either orally or by affidavit explaining the long delay in the lodging of the applications or of lack of knowledge of the provisions of the Judicial Review Act or even when instructions were given to solicitors to make the applications. In each case an affidavit has been filed by Mr. Bunn, the Secretary of the Victorian Branch of the Association. In that affidavit he states that he is authorized to make the affidavit on behalf of the Association, although it is difficult to see the relevance of that fact. Under the Judicial Review Act, the Association has no special standing, cf. the special role of organizations under the Conciliation and Arbitration Act as illustrated, for example, by R. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [1957] HCA 19; (1957) 97 C.L.R. 71. The Judicial Review Act confers rights and privileges upon persons aggrieved by decisions under that Act. The applicants claim to be such persons. The Association is not. It is not a party to any of the applications. It is the position of the applicants in seeking an indulgence of the Court which is of importance, but those persons have given no evidence to the Court. During the course of submissions attention was drawn to those apparent defects in the material presented to the Court, but counsel for the applicants made no application for an adjournment to allow further material to be presented. Accordingly, the motions must be decided upon the material presented to the Court.

The material before the Court consists of the applications which set out the grounds of each application and have annexed to them the respective declarations under s.32A of the Act, the affidavit by Mr. Bunn and an affidavit in each application by the officer of the Service giving the relevant declaration. In substance, the material discloses that the bans had been imposed by members of the Association. Arising from the giving of some ninety declarations the Association forwarded to its members forms to be completed in relation to those declarations. The forms were slow in being returned to the Association and thereafter they were processed by officers of the Association. Difficulties arose concerning liaison and co-ordination between Victorian Branch officers and Federal officers of the Association. Mr. Bunn first became aware of the time limits contained in s.11 Judicial Review Act in late February 1982. On 21 April 1982 a conference was held between officers of the Victorian Branch and the Branch's legal advisers, presumably solicitors. On 18 June 1982, Federal officers gave approval in relation to applications being lodged. These were then lodged on 22 June 1982. Mr. Bunn states that from late April 1982 until the issue of the applications much time was spent by the legal advisers of the Association in considering the information which had been supplied by members of the Association.

The substance of the facts deposed to on behalf of the respondents is that the dispute involving the bans on work had been long-standing and divisive within the Department and had led to breakdowns in friendships, distrust and disharmony which had a direct and detrimental effect on personal and working relationships. It was believed that since the bans had been lifted in December 1981 the detrimental effects had lessened but that the present proceedings could lead to the renewal of ill-feeling and distrust. In addition, the respondent, Ross Duff, in application V.G. No. 79 of 1982 had lost his diary which contained records associated with the declarations made by him and that, because of the lapse of time any evidence he may be required to give, would thereby be affected adversely.

As has been said, the discretion conferred by s.11(1)(c) of the Judicial Review Act is unfettered. Nevertheless, s.11 contains mandatory provisions prescribing periods within which applications are to be lodged. The Court must have regard to those provisions. At the same time, although there is much force in the views expressed in the respondents' affidavits, I do not consider that that material constitutes prejudice sufficient to justify the refusal to make an order granting further time if otherwise that order is justified.

I agree with the views expressed by Fisher J. in Doyle v. The Chief of General Staff:

"As there is no evidence of any prejudice to the respondent or any other person caused by the delay and it can not be said that Major Doyle rested on his rights, I do not see this as a sound ground for refusing his application. As Bray C.J. said in Lovett v. Le Gall (1975) 10 S.A.S.R. 479 at p.485: 'If the defendant has suffered no prejudice, as when he was well aware within the limitation period of the plaintiff's claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant the extension.' "

In the present cases I am not satisfied that the applicants have explained in any satisfactory manner the delay in lodging the applications. None of them has given evidence. If the knowledge of Mr. Bunn is relevant, he had knowledge of the provisions of s.11(1)(c) of the Judicial Review Act in February 1982, but the applications were not lodged until 22 June 1982, some four months thereafter. It is to be noted that prior to that latter date no application, whether ex parte or on notice, had been made for an extension of time in which to lodge applications. It is well established that delays by a solicitor are visited upon the client when those delays are relevant to limitation periods or matters involving want of prosecution. At the very least, the delays of the Association must be considered to be the delays of the applicants. I have had no regard to the strength or weakness of the substantive claims made by the applicants since, in my opinion, that is not relevant to the exercise of my discretion. In any event, no submissions were directed to me on those matters.

In all the circumstances I am not persuaded to exercise my discretion in favour of the applicants. This decision, however, does not necessarily prevent fresh applications being made on fresh material.

Accordingly, the following orders are made in each application:

1. The hearing of the objection to competency is adjourned to a date to be fixed.

2. The motion for further time within which to lodge the application is refused.

3. The directions hearing is adjourned to a date to be fixed.

4. Costs of the objection to competency and of the motion are reserved.

5. Liberty to apply.