Ross Samuel Nolan v Development Allowance Authority [1997] FCA 86 (4 February 1997)

CATCHWORDS

ADMINISTRATIVE LAW - whether applicant should be granted extension of time to institute appeal against decision of the Administrative Appeals Tribunal - relevant considerations - merit of claim - whether applicant is a person affected by a reviewable decision of the Tribunal.

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Development Allowance Authority Act 1992 (Cth) s 93, s 119

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

Lucic v Nolan (1982) 45 ALR 411

Aussie Airlines Pty Ltd v Australian Airlines Ltd

(1996) 139 ALR 663

Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd [1994] FCA 996; (1994) 49 FCR 250

ROSS SAMUEL NOLAN v DEVELOPMENT ALLOWANCE AUTHORITY

No VG 727 of 1996

GOLDBERG J

MELBOURNE

4 FEBRUARY 1997

FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION No VG 727 of 1996

B E T W E E N:

ROSS SAMUEL NOLAN

Applicant

and

DEVELOPMENT ALLOWANCE AUTHORITY

Respondent

Coram: GOLDBERG J

Place: MELBOURNE

Date: 4 FEBRUARY 1997

JUDGMENT

The matter before me comes by way of an application for extension of time to file or serve a notice of appeal from a decision of the Administrative Appeals Tribunal. The matter comes before me pursuant to section 44(2)A of the Administrative Appeals Tribunal Act 1992 which allows the institution of a notice of appeal out of time within such further time as the Court allows. The relevant chronology for the purposes of the application is that the application for extension of time was filed on 10 December 1996. It was supported by an affidavit sworn on 10 December 1996. The relevant factual situation which lies behind the application is as follows, and I summarise the facts briefly insofar as they are relevant for the purposes of this application.

There is a body known as the Development Allowance Authority ("the Authority") which is constituted under the Development Allowance Authority Act ("the Act"). It has a number of functions, in particular in relation to what I will call loosely infrastructure borrowings or bonds. In January 1996 the Authority decided to issue certain infrastructure borrowing certificates under Chapter 3 of the Act in relation to some proposed borrowings to fund the Melbourne City Link Project.

On 12 March 1996 the applicant Mr Ross Nolan, applied to the Authority to reconsider its decision to issue those certificates. On 11 April 1996 the Authority determined that the applicant was not a person who was affected by a reviewable decision and that the request for review did not fall within section 119(1) of the Act. On 12 April 1996 the Authority notified the applicant of its determination. The applicant applied to the Administrative Appeals Tribunal on 19 May 1996 pursuant to section 120(1) of the Act to review the decision of the Authority.

There was a hearing before the Tribunal and on 13 November 1996 the Tribunal handed down its decision. The formal decision recorded was that "the applicant is not a person affected by a reviewable decision and consequently the Tribunal lacks jurisdiction to determine his application for review". On the same day as the Tribunal handed down its decision, the District Registrar wrote a letter to the applicant in the following terms:

"Enclosed is a copy of the decision and reasons for the decision of the Administrative Appeals Tribunal in the above matters."

The "above matters" were number V96/556. The letter went on to say:

"Section 44 of the Administrative Appeals Tribunal Act 1975 provides that a party may appeal to the Federal Court of Australia on a question of law from any decision of the Tribunal. Any appeal is to be instituted with the Court no later than 28 days or within such further times as the Court allows. Also, an appeal is to be instituted in accordance with the rules of the Court, Order 53, Rule 5."

And then the address of the Court's Registry was given. In the course of argument before me the applicant informed me that he had received the decision of the Tribunal on or about 13 November. On 10 December 1996 the applicant filed an application for an extension of time within which to file and/or serve a notice of appeal from a decision of 13 November. The application set out that the decision of the Tribunal in respect of which the application was made was that the "applicant was not a 'person affected' and consequently lacks standing". The application also set out that an extension of time was required because a notice of appeal was not filed and/or served (as the case may be) within the time specified and it set out that the grounds of the application appeared in the annexed affidavit.

The annexed affidavit sworn on 10 December 1996 set out the reasons for the extension of time as follows:

"(1) AAT are denying access to documents lodged (required to be submitted with appeal). A minimum 45-day delay to apply for FOI is caused.

(2) The present Parliament is rising and the possibility to seek Federal support and/or review by Parliament of this matter is unavailable.

(3) The matter raised of Federal vs State law -making powers is being separately decided by the Euthanasia Bill DHA "Cigamatic" case.

(4) The "Aussie Airlines" case is due to be decided in the coming weeks by the Federal Court. This case will determine the grounds for contesting the AAT decision and reasons.

The Aussie Airlines case to which reference was made had been the subject of a decision of the Full Court of this Court on the issue of standing, which had been handed down on 13 September 1996 and which was reported, inter alia, (1996) 139 ALR 663.

In considering any application for leave to appeal out of time, I have to consider and weigh the reasons why the appeal was not filed in time.

In the course of argument before me, the applicant said that he did not realise that the matter was going to be contested today, and he also noted that his application for an extension of time to serve the notice of appeal had in fact been filed, and I assume served, on or about 10 December 1996, which was within the time period allowed for lodging a notice of appeal under section 44 of the Administrative Appeals Tribunal Act 1977 . Nevertheless, at that time and still, no notice of appeal or draft notice of appeal has been propounded.

There have been many decisions, not only in this Court but in other courts, about the principles to be applied as to whether applications to extend time for lodging documents, filing notices of appeal and the like should be allowed. A number of those relevant principles have been collected and restated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, in particular at pages 348 to 349.

Before I consider those principles I should note the observation made by Fitzgerald J in Lucic v Nolan (1982) 45 ALR 411 at page 416. In that case his Honour was considering an application for an extension of time for the filing of an application for review under the Administrative Decisions Judicial Review Act, but in my opinion his observations are apposite and appropriate in relation to the same situation which arises under section 44 of the Administrative Appeals Tribunal Act 1992 . At page 416 his Honour said:

"... 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."

He then considered the relevant provisions of the Administrative Decisions Judicial Review Act and said:

"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. Further, whilst there will be some matters which are relevant to the question whether time should be extended (in ordinary litigation inter partes) which are also relevant in this context, it seems to me likely that the overlap is only partial and that different emphasis is appropriate to some of the common factors. It may be that exceptional circumstances need not always be shown before time can be extended. However 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 adopt those observations of his Honour in relation to the matter before me. At pages 348 and 349 of Hunter Valley, Wilcox J set out a number of principles upon which he relied and I adopt and follow those principles. He referred to the passage in Lucic to which I have referred. He also noted that action taken by the applicants, 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. He then considered or made relevant any prejudice to the respondent and continued:

"However the mere absence of prejudice is not enough to justify the grant of an extension ... In this context, 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."

And he referred to the decisions in of Douglas v Allen [1984] FCA 77; (1984) 1 FCR 287, Lucic v Nolan (1982) 45 ALR 411, and Hickey v Australian Telecommunications Commission (1983) 48 ALR 517 at 589.

His Honour's fifth principle was:

"The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted."

He then considered considerations of fairness.

So far as the merits of the case are concerned the substantive issue involved relates to the merits of any potential appeal and they would be the merits of the applicant succeeding in establishing that he is a person affected by a reviewable decision and that the Tribunal did not lack jurisdiction to determine his application. I come back to that matter shortly.

Mr Gunst who appeared for the respondent Authority did not submit that there was any specific prejudice to the respondent in defending the proceedings occasioned by the delay, but what he did rely on was the fact that there would be an unsettling of other people if the application was successful in the sense of interfering with the structure of the funding and the investors involved in the Melbourne City Link Project.

So far as the reasons the applicant has advanced as to why an extension of time should be granted, it seems to me that some of those reasons are misconceived. If there is to be an appeal it is to be on a question of law. Any appeal would not be a re-hearing, it would not involve the admission of further facts, it would be a legal analysis and a legal consideration of the material that was before the Tribunal and whether or not the Tribunal erred in law in determining that the applicant was not a person affected by a reviewable decision.

It seems to me that the reasons advanced by the applicant in his affidavit do not go to the issues which would arise on any appeal and they show a misunderstanding as to what is involved in the notice of appeal and what would be involved in the appeal itself. I deal briefly with those reasons. The first reason was that the Tribunal was denying access to documents lodged which were required to be submitted with the appeal. It was not put to me that there were any specific documents involved, but as I understand the issues, so far as the appeal is concerned, it would be the documents recorded in the decision of the Deputy President. I cannot conceive of any documents that needed to be applied for under the Freedom of Information legislation that would be relevant to that legal issue to be considered on any appeal.

The second reason was that the present Parliament is rising and the possibility to seek Federal support and/or review by Parliament of this matter is unavailable. Again this shows a misunderstanding of the issues involved in an appeal. It is not for Parliament to review or to support the decision of the Tribunal. It is for this court, in an appropriate case, where the matter is properly before it to determine whether the Tribunal erred in law or not.

The third reason was that the matter raised of Federal versus State law making powers is being separately decided in the Euthanasia Bill/Cigamatic case. Such matter is not relevant to the legal issue of whether the applicant is a person affected by a reviewable decision. That issue arises on the basis of the relevant statutory material and such factual material as was before the Tribunal and was accepted by it.

I do not consider that the case Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 139 ALR 663 has any relevance to the issues before this court. That case involved issues of standing to seek and obtain declaratory relief and turned on the determination of the proper construction of a lease document, and whether Aussie Airlines was a new entrant to the domestic aviation industry. That decision is not of any assistance either to the applicant or to the court in this case.

The fifth and last reason advanced was that this case will determine the grounds for contesting the Tribunal decision and reasons. That ground says no more than that if the Tribunal was wrong on the matter of the applicant being a person affected it has to determine the matter on the merits. In saying this it says no more than what would follow in an ordinary appeal.

I consider the reasons advanced in support of the application to be misconceived and not such as to justify the granting of an extension of time within which to institute an appeal. Nevertheless, I still have to consider whether or not leave should be granted and, assuming in the applicant's favour, that he misunderstood what he had to do, I still have to consider consistently with the principles enunciated in cases in this court and the principles to which I have referred in Hunter Valley Development Pty Ltd v Cohen, the particular matters there referred to which should be taken into account in considering the application.

In particular, I have to consider whether or not there are any merits in the appeal in any event and I also have to consider the matters to which Mr Gunst referred in his submissions. The key issue which ultimately has to be determined, and which I address now, is whether, if the matter proceeds any further, it can be said there is any basis and any merit in the argument that the applicant is a person affected by the reviewable decision of the Tribunal.

I was referred by counsel for the respondent to Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd [1994] FCA 996; (1994) 49 FCR 250, a judgment of the Full Court of this Court constituted by Davies, Burchett and Gummow JJ. The various judgments in that case considered the issues which arise in the context of whether a person is or a person's interests are, affected by a decision. In particular Davies J at page 258 noted that adjectives real, genuine and direct have been used to described the relationship required. I rely on that passage in his judgment at pages 258 and 259. I also rely upon the passages in Gummow J's judgment at pages 272 and 279. I accept, as his Honour said at page 272 that:

"The day is long gone when there was any general presumption that in statutes the "interests" concerned must be proprietary or even legal or equitable in nature ..."

Nevertheless, it is important to determine whether the applicant is a person affected in a particular way. And as Gummow J pointed out at page 272:

"In each case, the contents of the terms "affect" and "interests" are to be seen in the light of the scope and purpose of the particular statute in issue."

And, as his Honour then noted, and again I adopt:

"It is vital to approach the issues upon the present appeal upon a review of the scope and purpose of the Act."

It is necessary then to understand very briefly the relevant provisions of the Development Allowance Authority Act. The Authority is established under section 94 of the Act. Chapter 3 of the Act contains provisions, relating to Infrastructure Borrowings. The particular sections which concern the matter before me are sections 93A through 93O. Section 93A provides:

"The object of this Chapter and the infrastructure borrowings provisions of the Income Tax Assessment Act 1936 is to provide tax incentives for genuine private sector investment in publicly accessible infrastructure facilities and related facilities."

There is then set out in section 93B, a simplified outline of the scheme of Chapter 3 in the following terms:

"(a) a person may apply to the Development Allowance Authority (the "DAA") for the issue of a certificate in relation to a proposed borrowing that the person considers to be an infrastructure borrowing;

(b) the DAA will issue the certificate if it is satisfied that the borrowing is an infrastructure borrowing and that certain other criteria are met;

(c) it is a condition of the issue of the certificate that he holder must use the money borrowed in the way proposed in the person's application and must comply with certain other requirements;

(d) if the certificate holder wishes to transfer to another person all of its interests and liabilities in relation to the borrowing or any facilities acquired or constructed with the money borrowed and certain criteria are met, the DAA must agree to transfer the certificate;

(e) the DAA may cancel the certificate if the conditions applying to it are contravened, or if the holder fails to comply with certain other requirements of the Chapter. In such a case, the holder will be liable to pay an amount that recoups some or all of the tax benefits of the certificate."

There are appeal provisions set out to which I will refer.

Section 93O, upon which the applicant relies, provides in subsection (1) that the Authority must issue the certificate in certain circumstances.

Subsection (2) provides that:

"If (a) the borrowing is a direct infrastructure borrowing, and (b) there is in force, at the time at which the DAA proposes to issue the certificate in relation to the borrowing, a law that the DAA is satisfied will prohibit or restrict the operation of other facilities in competition with the infrastructure facilities concerned, the DAA must not issue the certificate."

As I understand the applicant's case, he seeks to rely upon that subsection to say that these certificates should not have been issued. The basis upon which the applicant seeks to establish that he has standing and that he is a person affected by a reviewable decision, is that he has been involved for a considerable period of time in what I will call in a shorthand way, an aerocar project which existing legislation prohibits and which will be in competition with the Melbourne City Link Project. The nature of the applicant's project is identified on page 5 of the reasons for decision of the Tribunal. It is described as:

"A high speed air transport network project which Mr Nolan has funded, researched and developed technologically. And in relation to which he claimed to have financial backers. Mr Nolan's scheme is based on an air borne transport network in which twin engine aerocars which are able to take off and land vertically and which would operate in air traffic highways would be placed in competition with traditional land vehicular modes of transport."

It does not matter for the purpose of this judgment to have a precise detailed analysis of the project so long as the general nature of it as an aerocar project is identified.

The question which has to be addressed is whether on that basis it can be said that the applicant is a person affected because there is in force a law which will prohibit or restrict the operation of his aerocar project which is in competition with the Melbourne City Link Project. Before answering that question, it is necessary to look at the appeal and the review provisions of the Act. Section 119(1) of the Act provides that:

"A person who is affected by a reviewable decision may if dissatisfied with the decision, by notice given to the DAA within:

(a) the period of 21 days after the day on which the decision first comes to the attention of the person; or

(b) such further period as the DAA allows;

request the DAA to reconsider the decision."

Subsection (3) of section 119 provides that:

"Upon receipt of the request, the DAA must reconsider the decision and may, subject to subsection (4) confirm or revoke the decision or vary the decision in such manner as the DAA thinks fit."

Subsection (4) provides that:

"If the DAA does not confirm, revoke or vary a decision before the end of the period of 40 days after the day on which the DAA received the request under subsection (1) to reconsider the decision, the DAA is taken at the end of that period to have confirmed the decision under subsection (3)."

Section 120 of the Act then provides that:

"Applications may be made to the AAT for review of decisions of the DAA that have been confirmed or varied under subsection 11."

Mr Gunst for the Authority submitted that the right to seek review under section 119 is not intended to be available to the general public. He pointed to the commercial context in which decisions under section 93O are made where certificates would be sought for large projects with complex financing arrangements. He also referred to considerations of timing and certainty, as the taxation consequences would be crucial to the successful raising of capital. What I think is more important is to go back to the opening words of section 119 which refer to:

"A person who is affected by a reviewable decision ..."

The applicant has said, and the material before the Tribunal confirms that he does not have any objection to the Melbourne City Link Project. What he objects to is that his competitors should have the benefits of tax concessions given to their investors so as to allow the project to proceed more readily when he is prevented by legislation from establishing his project. The applicant's submissions before me were couched in terms in that he would be disadvantaged in relation to his project if the Melbourne City Link Project got the benefit of the tax concessions granted as a result of the issue of the certificates when he was prevented by legislation from establishing his project which is in competition with the Melbourne City Link Project.

Those tax concessions, in short, are tax concessions in favour of the investors who receive returns which are not taxable. The payment of those returns is not deductible. So, it is an advantage to the investors. It seems to me that the prospects of the applicant succeeding in establishing that he is a person affected by the decision of the Authority having regard to the nature and present state of his project are sufficiently remote and speculative as to make me come to the conclusion that the prospects of any appeal succeeding are highly unlikely. When one considers the relevant principles relating to persons being affected, it seems to me that the applicant's business concerns and the matters which he has propounded are too remote from the issues dealt with by the Act. I accept that the applicant has been involved for a considerable period of time in seeking to develop the aerial project to which I have already referred. But, it appears to me that the connection between that project and the Melbourne City Link Project is tenuous in the extreme and too remote to give the applicant a basis for saying that he is affected by this decision.

I also think there is force in the argument advanced by Mr Gunst that the only persons who should have standing, or would be entitled to be said to be persons affected, would be persons involved in relation to the issue of the certificates. By involved, I mean have an interest in relation to the funding or the provision of the money, or have an interest in such conditions as might be involved in relation to the issue of the certificate.

I have considered the applicant's submissions in relation to section 93O(2) that there is in force a law which the applicant says the Authority should be satisfied will prohibit or restrict the operation of other facilities in competition with the Melbourne City Link Project. The applicant relies upon various statutory and regulatory provisions akin to the Air Navigation Regulations and similar statutes and legislation which mean at the present time that he cannot get his project off the ground. One has to consider, so far as the evidence before the Tribunal was concerned, and the material put before me, whether there is a sufficient nexus between the applicant's proposal and the Melbourne City Link Project as they presently exist which brings section 93O into operation. I am not satisfied that there is such a nexus or that the Authority should have been satisfied in the terms of section 93O(2).

Thus so far as the merits are concerned, it seems to me that the merits work against the applicant in determining whether it can be said that the merits are such that he ought to be allowed to proceed with the appeal and have leave to file a notice of appeal out of time. Further the nature of the infrastructure bonds to which the certificates relate are such that there is merit, in my view, in what Mr Gunst referred to as the unsettling aspect relating to other people; a matter to which Wilcox J referred in the Hunter Valley case. Mr Gunst, also, in support of his argument referred to the difference in wording between sections 119 and 120 of the Act where the words "confirm" or "vary" appear in both sections, but the word revoke only appears in subsection (3). I consider that the structure of those sections are such to support the proposition that the range of persons entitled to say they are affected by a decision in relation to the certificates is very limited.

It, therefore, seems to me upon all the material put before me that application for leave to extend the time for filing and serving the notice of appeal should not be granted. I should say that I was somewhat troubled by the fact that the applicant had filed the application within a time within which he could have filed the notice of appeal. That matter was raised by me with the applicant and in substance he said, as I noted earlier, that he had no knowledge that the matter was going to be contested today. He said he had no familiarity with the procedure and he had no knowledge that the matter was, or would be, it was not clear, out of time. I note, however, that in a letter that was sent to him on 13 November 1996 the letter stated:

"An appeal is to be instituted with the Court no later than 28 days or within such further times as the Court allows."

And I note that on 10 December in the application filed, the application is for an extension of time. So, I infer from that material before me that within the time within which the notice of appeal could have been filed or, indeed, should have been filed the applicant was aware that he could either file a notice within that time or take his chance that the Court would grant an extension for the reasons set out in his affidavit. It seems to me that he took his chance and, in my view, on the material before me he does not come within the principles to which I have already referred and that his application for extension of time to file or serve a notice of appeal should be dismissed.

In my opinion the application has failed and the usual order should apply, that the costs follow the event. The order of the court will be that the application by the applicant for extension of time to file or serve a notice of appeal from the Administrative Appeals Tribunal dated 10 December 1996 is dismissed and that the applicant pay the respondent's costs of the application and this day.

For the applicant: Mr R S Nolan in person

Counsel for the Respondent: Mr C Gunst

Solicitors for the Respondent: Australian Government Solicitor

Date of Hearing: 4 February 1997

Date of Judgment: 4 February 1997

I certify that this and the preceding eighteen (18) pages are a true copy of the judgment of his Honour Justice Goldberg.

Associate:

Date: