Re Michael Russell Mark Broadbent and Montchel Pty Ltd v Civil Aviation Authority [1993] FCA 1 (6 January 1993)

FEDERAL COURT OF AUSTRALIA

Re: MICHAEL RUSSELL MARK BROADBENT and MONTCHEL PTY. LTD.
And: CIVIL AVIATION AUTHORITY
No. Q G118 of 1991
FED No. 1
Number of pages - 23
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Drummond J.(1)

CATCHWORDS

Administrative Law - Judicial review - application under s. 11 Administrative Decisions (Judicial Review) Act 1977 (Cth) for extension of time to make application for an order of review of a decision by respondent - considerations relevant to application - application allowed.

Administrative Decisions (Judicial Review) Act 1977 (Cth) s. 11.

Hunter Valley Developments Pty Ltd v. Cohen [1984] FCA 176; (1984) 3 FCR 344

Lucic v. Nolan (1982) 45 ALR 411

HEARING

BRISBANE
6:1:1993

Counsel for the applicants: G.J. Radcliff

Solicitors for the applicants: Robinson and Robinson

Counsel for the respondent: A.M. Daubney

Solicitors for the respondent: Mallesons Stephen Jaques

ORDER

THE COURT ORDERS THAT:
1. The time for making the application for an order

of review of the respondent's decision of 15 May,
1992 is extended to 6 January, 1993.
2. The applicants' notice of motion filed 9
September, 1992 is dismissed.
3. The respondent's notice of motion filed 9
September, 1992 is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

DRUMMOND J. I have before me two notices of motion taken out by the applicants in the proceedings, one filed on 9 September, 1992 and the other on 9 November last, and a notice of motion filed on 9 September, 1992 by the respondent in the proceedings.

2. These motions follow upon an order I made on 3 September, 1992 striking out the applicants' amended application and statement of claim.

3. By their original proceeding, the applicants sought a review of the decision by the respondent made on 28 March, 1991 rejecting the first applicant's application for approval as chief pilot of the second applicant ("the first decision").

4. Ultimately in the course of the hearing, counsel for the applicants accepted that the critical matter was whether the applicants could obtain the extension of time within which to seek a review of the decision made by the respondent on 15 May, 1992 rejecting a second application by the applicants for the respondent's approval of the first applicant as chief pilot of the second applicant ("the second decision"), which extension they sought by their notice of motion of 9 November and that the fate of this motion really governed the fate of the earlier notice of motion. The respondent also accepted this approach.

5. Review of the first decision is sought on the ground that it was infected with bias against the first applicant on the part of a number of the respondent's officers, including the officer who was delegated to make the decision; that it was made in bad faith in that it was affected by malice and spite harboured by various of the respondent's officers towards the applicants and that it was made for an improper purpose, namely, an absence of any legitimate reason for depriving the second applicant of its chief pilot coupled with a desire to cause financial detriment to both applicants. The suggestion appears to be that a number of the respondent's officers engaged in a vendetta against the first applicant. Those of the particulars in support of this part of the applicants' challenge to the first decision which have survived protracted interlocutory hearings are set out in the statement of claim the subject of my striking out order. That pleading also shows that the grounds upon which the applicants wished to challenge the second decision involved less controversial matters in the sense that there is no allegation that the second decision was infected with bias or made in bad faith or to achieve a malicious purpose.

6. It is common ground that the applicants had the 28 days allowed by s. 11(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) within which to file an application for an order to review the second decision. This period expired on 13 June, 1992.

7. The approach the Court should take in deciding whether to exercise its power under s. 11(1)(c) to extend this 28 day period has been discussed in a number of cases. In Lucic v Nolan (1982) 45 ALR 411, Fitzgerald J, at page 416, said:

"The legislation contains various mechanisms to
allow these different policy considerations to be
balanced. Thus, for example, one of the features of
the Administrative Decisions (Judicial Review) Act
is that it contains limitations with respect to the
time for the commencement of proceedings. Where
specific periods are fixed, they are quite short.
That carries obvious implications. However, the
time limitations are not absolute. In this, as in
other matters arising under the Act, eg in respect
of the relief which may be granted under s 16, the
court is given a discretion. None the less, it
must, in my opinion, be accepted that it has
deliberately been made the prima facie rule that
proceedings not commenced in time should not be
entertained. In this respect, there is an obvious
contrast between the terms of s 11(3) which provides
a pre-emptive fixed period subject to a
discretionary power of extension, and provisions
like that of s 11(4) which do not fix any particular
period but refer merely to what is in the court's
opinion 'reasonable'.
I do not think that the court, in exercising its
power to make exceptions in appropriate cases,
should confine its attention to the consequences to
the applicant of a refusal to extend time. Justice,
as the ultimate object to be obtained by the
exercise of the discretion, seems to me to require
that regard be had to broader considerations than
merely the interests of the applicant.
...
I consider that an applicant for an extension of
time maintains throughout the burden of showing why,
in all the circumstances, the extension of time
should be granted. I do not think that, given proof
of certain matters by an applicant, eg an
explanation for his delay in making application, an
evidentiary onus shifts to the respondents to
establish that prejudice will result if the
extension is granted; nor, in my opinion, if the
delay is explained and there will be no personal
prejudice to the named respondents, should an
extension always be granted. All else aside, there
will often be no question of prejudice to a
respondent decision-maker."

8. In Hunter Valley Developments Pty. Ltd. v Cohen [1984] FCA 176; (1984) 3 FCR 344 Wilcox J, said at pages 348-349:

"Section 11 of the Administrative Decisions
(Judicial Review) Act 1977 (Cth) does not set out
any criteria by reference to which the court's
decision to extend time for an application for
review under s. 5 is to be exercised. Already there
have been a number of decisions of judges of this
Court, all sitting at first instance, dealing with
the approach proper to be taken. They differ a
little, both in language and in emphasis, but I
venture to suggest that from them may be distilled
the following principles to guide, not in any
exhaustive manner, the exercise of the court's
discretion:
1. Although the section does not, in terms, place
any onus of proof upon an applicant for extension an
application has to be made. Special circumstances
need not be shown but the court will not grant the
application unless positively satisfied that it is
proper so to do. The 'prescribed period' of
twebty-eight days is not to be ignored ... Indeed, it is
the prima facie rule that proceedings commenced
outside that period will not be entertained ... 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 ...
2. Action 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. 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 ... and a case
where the decision-maker was allowed to believe that
the matter was finally concluded.
...
3. Any prejudice to the respondent including any
prejudice in defending the proceedings occasioned by
the delay is a material factor militating against
the grant of an extension ...
4. However, the mere absence of prejudice is not
enough to justify the grant of an extension ...
public considerations often intrude. 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.
5. The merits of the substantial application are
properly to be taken into account in considering
whether an extension of time should be granted ...
6. Considerations of fairness as between the
applicants and other persons otherwise in a like
position are relevant to the manner of exercise of
the court's discretion ..."

9. In view of the width of the discretion conferred on the Court by s. 11(1)(c) of the Administrative Decisions (Judicial Review) Act, I think it is proper, in a case such as this, for the Court to have regard not just to the circumstances that relate directly to the delay on the part of the applicants in seeking a review of the decision in question, but also to the history of the litigation of which, for a time, the applicants' challenge to the decision of 15 May, 1992 formed part. I therefore reject the submission of the applicants that the period of relevant delay is "negligible" and, at its highest, consists of a period from 13 June, 1992 (the date 28 days after that decision) until 1 July, 1992 (the date of a concession made by the respondent to which I will refer), together with a brief period from 13 October, 1992 to 6 November, 1992.

10. The history of the litigation is conveniently summarised in paragraph 6 of the affidavit of Mr Scott-Mackenzie filed on behalf of the respondent on 8 December, 1992, although a few amendments to this were agreed in argument. The applicants did not seek a review of the first decision of the respondent's made on 28 March, 1991 rejecting the applicants' first application for approval of the first applicant as the second applicant's chief pilot until 9 September, 1991, i.e., well out of time. The reason for this delay does not appear from the material before me. But on 21 October, 1991 the Court dismissed the respondent's notice of objection to the competency of the application for review and extended the time for making it to 9 September, 1991; the applicants were ordered to supply further and better particulars of their application by 7 November, 1991. They did not comply with that direction.

11. On 16 December, 1991, on the respondent's application that the proceedings be dismissed, the Court in effect extended the time from 7 November to 23 December, 1991 within which the applicants were to give some of the particulars sought by the respondent of their application (a direction the applicants complied with) and ordered that each party file and serve its list of documents by 17 January, 1992, that inspection be completed by 21 January, 1992 and that the applicants file and serve full particulars of certain allegations contained in the originating application by 30 January, 1992, i.e., after discovery. The applicants were ordered to pay the respondent's costs of that hearing. They did not comply with the order for discovery nor did they comply fully with the special order in relation to particulars to be provided after discovery. The respondent was also in breach of the order relating to discovery, filing its list of documents only on 21 February, 1992.

12. On 7 February, 1992 the Court extended the time for compliance by the parties with the discovery order from 17 January, 1992 to 28 February, 1992 as well as the time fixed for the completion of inspection; the Court also ordered that the time fixed by the order of 16 December, 1991 for the applicants to give the particulars to be provided after discovery be extended from 30 January to 12 March, 1992.

13. The applicants did not comply with the order for discovery made on 7 February in that while they sent their list of documents to their town agents on 26 February, the list was not filed until 2 March - three days late - and they failed to comply with the requirement that they provide the particulars to be given after discovery by 12 March, 1992.

14. On 13 March, 1992 the Court once again extended the time for the delivery of these particulars to 26 March and made an order for the delivery of other particulars by 26 March, 1992. This order was made by consent. The applicants were one day late in complying with it.

15. At the directions hearing appointed for 2 April, 1992 directions were given with a view to finalising the particulars that the respondent was entitled to insist on from the applicants. The applicants were then represented by their town agent, who for want of instructions, was not able to contribute to the discussion. However, it is conceded by the respondent that it did not give the applicants notice of its intention to complain on 2 April about the inadequacy of the applicants' particulars. The directions given on 2 April, 1992 were complied with.

16. At the hearing on 14 May, 1992, which had been fixed on 2 April, certain of the applicants' particulars were ordered to be struck out, subject to a particular condition. The costs of this hearing were reserved to the next directions hearing fixed for 11 June, 1992. This condition was fulfilled and the particulars were thereupon struck out. It was only then that the applicants' case with respect to the review of the decision of 28 March, 1991 assumed its final form. It is the difficulty the applicants have had in properly formulating these allegations that are responsible, in large part, for the protracted history of the litigation.

17. On 11 June, 1992, the matter was adjourned to 1 July, 1992 because there was no appearance on behalf of the applicants. This is now explained as due to an oversight by the applicants' solicitor. It was also then ordered that any application by the respondent to strike out the applicants' proceedings for an order to review the decision of 28 March, 1991 be filed and served by 18 June, 1992 and be heard on 1 July, 1992. It emerged in the course of the hearing on 11 June, 1992 that the first applicant had made the second application to the respondent for approval as chief pilot, which application was rejected by the respondent on 15 May, 1992. I therefore gave leave to the respondent to apply to the Court for an order dismissing the original proceedings, should it wish to argue that the review of the first decision which alone was sought in those proceedings would be futile in view of the second decision. This direction was given in circumstances in which the respondent contended that a review of the first decision would resolve nothing, in view of the second decision. The applicants were ordered to pay the respondent's costs of the hearings on 14 May and of that day, 11 June.

18. The respondent's motion, foreshadowed on 11 June, was heard on 1 July, 1992. In the course of argument, the respondent, by its counsel, indicated that if the applicants were given leave to amend their original application to include in it a challenge to the second decision, it would not take the point that the applicants were out of time to bring such a challenge. I directed that the applicants have leave to amend their original application to be delivered by 15 July, 1992 and that the applicants deliver a statement of claim in relation to the review of both the first and the second decisions by 29 July, 1992. The action had up to that time proceeded only on the applicants' originating application. Delivery of a statement of claim was ordered because the formulation of the applicants' attack on the first decision contained in the application and particulars had become somewhat complicated and to ensure that the applicants' challenge to the two decisions would be concisely formulated in the one document. The respondent was also then ordered to deliver its defence by 26 August, 1992 and the proceedings were adjourned for further directions to 3 September, 1992.

19. These directions, given on 1 July, were not complied with in that the applicants did not deliver their statement of claim until 7 August, 1992 and their amended application until 25 August, 1992.

20. In the meantime, on 14 July, 1992, the respondent's solicitors, after replying to certain queries raised by the applicants' solicitors in a "without prejudice" letter, concluded by saying:

"Whatever your clients decide to do, please ensure
that they file and serve a statement of claim within
the time limited by the Honourable Mr Justice
Drummond on 1 July, 1992."

21. On 3 August, no amended application and no statement of claim having been served, the respondent's solicitors, by facsimile, informed the applicants' solicitors as follows:

"Unless your clients file and serve an amended
application and a statement of claim by 4.00 p.m. on
4 August, 1992, our client will make application to
the Court for an order that the proceeding be
dismissed."

22. This produced a reply the next day, by facsimile, referring only to the order that the applicants deliver a statement of claim by 29 July, 1992 and concluding:

"Please be advised that we expect to be in a
position to deliver our clients' pleading when
counsel returns the settled amended statement of
claim which we expect later this week."

23. A draft statement of claim, not then settled by counsel, was forwarded by facsimile to the respondent's solicitors on 5 August, 1992. The statement of claim was served on 7 August, 1992.

24. The complaint of the respondent's solicitors on 10 August that the applicants had not complied with the direction of 1 July, 1992 to deliver an amended application by 15 July and that they should ensure that they do so by 4.00 p.m. that day was met on 12 August, 1992 with a statement by the solicitor for the applicants that neither he nor his counsel recalled the making of any such order, but that because such was required in the copy of the order provided by the respondent's solicitors, he would "request counsel to proceed immediately with the drawing of same for delivery as soon as possible".

25. On 20 August, 1992 the respondent's solicitor, by facsimile, advised the applicants' solicitors that his recollection accorded with the transcript of the proceedings on 1 July and the formal order and concluded:

"Please ensure that your clients comply with the
direction by 4.00 p.m. today. Otherwise, our client
will make application to the Court for an order that
the proceeding be dismissed."

26. At about 5.20 p.m. that day, the respondent's solicitors received by facsimile a copy of "the proposed amended application for an order of review" and a sealed copy of the amended application dated 20 August was filed on 24 August and served on 25 August, 1992.

27. The applicants' solicitor says that at no time subsequent to the service of the applicants' statement of claim on 7 August and amended application on 25 August did the respondent's solicitors give notice of intention to apply to strike out either of those documents. He also says that at no time prior to the service by the applicants of those documents did the respondent's solicitors indicate they would make such an application. The latter statement is wrong. The former statement is true in that, after service of the statement of claim on 7 August, no notice of intention to apply to strike out that pleading was given and after service of the amended application on 25 August, no notice of intention to strike out that document was given. However, the applicants had not complied with the deadlines set by the respondent's solicitors on pain of the respondent applying to strike out.

28. Although it got the statement of claim on 7 August, albeit filed out of time, the respondent did not deliver any defence as it was required to do by 26 August by the directions given on 1 July. Instead, on 3 September, counsel for the respondent sought an order that the purported amended application and statement of claim be removed from the file on the ground that they had been filed improperly. This was tantamount to seeking an order that they be struck out.

29. On 3 September, 1992 I ordered that the amended application and the statement of claim both be struck out. It was thus then open to the applicants to challenge only the first decision.

30. In making the striking out order on 3 September last, I had regard to the history of the litigation which included default by the applicants on a number of occasions in failing to comply with directions. I also had regard to the fact that the hearing on 3 September had been set, back on 1 July, as the occasion on which any complaints by the respondent about the adequacy of the applicants' pleading would be considered, but the applicants' were represented only by a town agent instructed at the last minute and who knew little about the matter, the second time that such a situation had arisen. The explanation for this was that the applicants' solicitor had failed to check his diary on 2 September because of the press of other work he was doing in preparing a complex action for trial. I struck out the amended application and the statement of claim in circumstances in which the applicants had failed to take advantage of the concession given to them by the respondent on 1 July not to take the point that any challenge to the decision of 15 May, 1992 was out of time by failing to deliver the amended application and the statement of claim by the dates directed on 1 July.

31. When the applicants' notice of motion of 9 September and the respondent's notice of motion of the same date came before me on 17 September, counsel for the respondent confirmed what I had understood to be his position on 3 September, namely, that, in view of the applicants' non-compliance with the directions of 1 July, the respondent had withdrawn the concession made that day concerning the applicants' foreshadowed challenge to the second decision. I granted an application by the applicants to adjourn the hearing of their motion and the respondent's motion to enable the applicants to seek an extension of time within which to apply for a review of the decision of 15 May, 1992. I did this for the reasons I gave in the course of argument that day, namely, that the respondent's concession having been withdrawn, there would be little point in granting any of the relief the applicants sought by their notice of motion of 9 September since the applicants would remain confronted with the problem of having to challenge the second decision, which challenge the respondent intended to meet with the well-founded argument that it was time-barred.

32. It is necessary to set out what took place thereafter.

33. On 22 September, 1992 the applicants' solicitors wrote to the respondent's solicitors inviting the respondent to reconsider its attitude in withdrawing the concession it made at the hearing on 1 July with respect to the applicants' challenge to the second decision. On 30 September, 1992, those solicitors advised of the respondent's refusal to alter its position saying:

"Your clients, throughout, have adopted a cavalier
attitude to the proceeding. Time and again, they
have failed to comply with directions, on occasions
failed to appear on directions hearings and on other
occasions have appeared on directions hearings by a
solicitor inadequately briefed. As a consequence,
our client has been put to a great deal of
additional trouble and expense."

34. On 13 October, 1992 the solicitors for the respective parties agreed that in the event that the applicants were to bring an application for an extension of time within which to seek a review of the decision of 15 May, 1992, the respondent would not rely on certain delay on the part of the applicants in taking such a step. This arrangement was made to suit the mutual convenience of the solicitors for both parties who were each heavily involved in another action in which they had retained the same counsel who are retained in this matter. The applicants' solicitor says the arrangement was that no complaint would be made in respect of delay by the applicants between the hearing of 17 September and late October, while the respondent's solicitor says the arrangement was that the respondent would not rely on delay by the applicants in this regard between 17 September and the date of this telephone conversation, 13 October, 1992. Whatever be the position, and it is not possible to resolve this conflict on the limited evidence before me, the solicitors for the applicants did not file the notice of motion seeking the extension of time necessary to apply for a review of the decision of 15 May, 1992 until 9 November, i.e., after receipt of a letter from the respondent's solicitors of 4 November putting the applicants on notice that no application for the extension of time having been yet made, the respondent would rely on the passage of time beyond that agreed between the solicitors on 13 October as delay disentitling the applicants to any extension they might seek.

35. The events relevant to the question whether the extension of time sought by the applicants within which to challenge the second decision should be granted can now be summarised. They are as follows:

(a) Although the applicants made allegations of
serious impropriety against a number of
officers of the respondent with respect to the
decision of March 1991, they did not initiate a
challenge to that decision until September
1991, well after the time allowed by the
Administrative Decisions (Judicial Review) Act
for doing so. That they obtained the necessary
extension of time within which to do this on 21
October, 1991 does not deprive the fact that
these proceedings were started against this
background of delay on the part of the
applicants of all significance.
(b) Despite orders of 21 October, 1991, 16
December, 1991, 7 February, 1992 and 13 March,
1992, it was not until 27 March that the
applicants gave all the particulars upon which
they wished to rely in attacking the first
decision. It must be noted, however, that this
delay on the applicants' side was in part due
to the failure by the respondent to comply with
the directions requiring discovery by it on 17
January until 21 February, 1992; moreover, the
respondent was content to consent on 13 March,
1992 to the applicants being allowed the last
extension until 26 March to comply with the
directions concerning the particularisation of
the applicants' case.
(c) On one occasion, 11 June, 1992, there was no
appearance on behalf of the applicants at a
directions hearing. This was said to be due to
an oversight by the applicants' solicitor. On
2 April and 3 September, 1992 the applicants
were represented by a town agent briefed at the
last minute who knew little about the matter.
Again, it must be noted that the respondent
conceded that it did not warn the applicants
beforehand that it was dissatisfied with the
particulars provided by the applicants and
would make complaint about that on 2 April:
the applicants' solicitors on that occasion may
well have thought that all that would happen on
2 April would be the giving of a direction to
set the matter down for hearing.
(d) It having emerged in the course of the
directions hearing on 11 June, at which there
was no appearance for the applicants, that a
second decision was made on 15 May, 1992
rejecting a further application by the
applicants that repeated the first application
they had made, on 1 July, 1992 the respondent
agreed not to take the point that the
applicants were out of time to challenge the
second decision, should they be given leave to
amend their application to attack it. The
applicants were then given leave to challenge
the second decision by delivering an
appropriately amended application by 15 July,
1992 and they were also directed to deliver a
statement of claim relating to the two
decisions by 29 July, 1992. The statement of
claim was not delivered until 7 August and the
amended application not until 25 August, with
the delivery of each document being preceded by
a threat to strike out the application if the
relevant document was not delivered by an
extended deadline nominated by the respondent,
a deadline not met by the applicants in either
case.
(e) The respondent adopted a sensible approach in
indicating on 1 July that it would not object
to the applicants having leave to amend their
proceedings to include in them a challenge to
the second decision; the applicants' were given
that leave on condition that they comply with
the times limited for the delivery of the
relevant material. They did not however comply
with those time limits and understandably, the
respondent was no longer prepared to allow the
applicants' continued delay in attending to the
progress of the litigation to be ignored.
(f) The amended application and the statement of
claim were struck out on 3 September, 1992, the
applicants again being represented by an
inadequately briefed town agent: this was said
to be due to another oversight by the
applicants' solicitor in noting the hearing for
3 September. The applicants complain that the
respondent did not inform them of its own
intention to complain about their non-compliance
with the directions concerning
delivery of the amended application and the
statement of claim by nominated dates. In
making this complaint, they ignore the letters
of 3 August and 20 August from the respondent's
solicitors, to which I have referred.
(g) The applicants have been ordered to pay the
respondent's costs of the hearings on 16
December, 1991, 14 May, 11 June and 3
September, 1992. On 17 September the costs of
that hearing were made the respondent's costs
in the proceedings.

36. The policy of the Administrative Decisions (Judicial Review) Act, as identified in the cases to which I have referred, is that a person who wishes to challenge an administrative decision of the kind here in question must move promptly; if he does not do so he has the burden of showing why there should be a relocation of the prima facie rule that a challenge made out of time is not to be entertained. Such a relaxation is not granted merely because an explanation is made for the delay and no prejudice has been suffered by the respondent: there is a public interest in not allowing challenges to administrative decisions to be made long after the event.

37. This litigation, which, as I have said, includes the making by the applicants of serious allegations of misconduct against officers of the respondent, has proceeded at a slow pace and in a disorderly fashion. This is due, in large part, to the way the applicants and their legal advisers have conducted the matter. Probably as good a reflection of the latter's attitude to the situation that has now been reached is contained in the submission by applicants' counsel that, had the respondent not complained on 3 September, 1992 about the applicants' belated compliance with the directions of 1 July, 1992, the matter would probably have been set down for trial on that day. This seems to me to reflect an attitude on the applicants' side that they are free to attend to interlocutory steps when it is convenient for them to do so, irrespective of when they are required by directions of the Court to take those steps, and that so long as they eventually attend to them, the respondent has no legitimate cause for complaint. This approach is quite inconsistent with the case management system contained in Order 10 of the Federal Court Rules which is operated by this Court and with the implications that such a system has for litigants: see Lenijamar Pty. Ltd. v AGC (Advances) Ltd. [1990] FCA 520; (1990) 98 ALR 200 at 206-209. It also ignores the fact that if the applicants had complied with the directions earlier given, the matter would have been set down for hearing long ago.

38. But for the fact that the respondent cannot say that it is in the position of a litigant who has constantly pressed for the early determination of the charges that are levelled against its officers and has been frustrated by continuing delays on the part of the applicants, I would, in the circumstances of this case, refuse to grant the extension of time sought to challenge the second decision. However, there has been default of some significance on the respondent's side which played a part in the delays for which the applicants must take the main responsibility: I refer to the respondent's delay in complying with the direction that it give discovery by 17 January, 1992. I do not regard the respondent's failure to deliver its defence as directed by 26 August last when it was confronted with yet another failure on the part of the applicants to comply with the direction concerning delivery of the statement of claim and the amended application as telling against it: against the background of delays by the applicants, the respondent was entitled to take the stand that it was permissible for it to complain about this most recent delay, something that it could not have effectively done if it had delivered its defence. I also note that for purposes that are not revealed in the material before me but which no doubt suited the respondent, it was prepared to consent on 13 March to time being extended for compliance by the applicants with earlier directions as to the provision of particulars and that it was prepared to agree, apparently for the mutual convenience of the legal representatives for both sides, not to rely upon some of the delay between 17 September and the filing of the application for the extension of time now sought.

39. In these circumstances I propose to grant the extension of time. For the reasons outlined above, I dismiss the respondent's motion of 9 September and the applicants' own motion of the same date.