Campbell, Enid ; Groves, Matthew --- "Time Limitations on Applications for Judicial Review" [2004] FedLawRw 2; (2004) 32(1) Federal Law Review 29
[∗]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[5] Under the now repealed O 53 the validity of administrative acts could be challenged collaterally in a civil action, but acts which were reviewable under the Order could not be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.