SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION Fisher J.(1)
CATCHWORDS
Administrative Decisions (Judicial Review) Act 1977 - Australian Military Regulations, redress of wrongs - application for extension of time - grounds upon which to exercise discretion - length of delay - whether applicant a "person aggrieved" - whether alternative remedy.
Administrative Law - Judicial review - Extension of time to lodge application for order of review - Principles upon which granted - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 10(2)(b)(ii), 11(1)(c).
Defence and war - Compulsory retirement - Member not promoted - Complaint dismissed by Chief of General Staff - Judicial review sought by member - Australian Military Regulations, regs 194, 765, 769.
HEADNOTE
The applicant retired as an officer in the Australian Regular Army on 31 December 1981, at the compulsory retiring age of forty-seven years for officers not promoted above the rank of Major. Prior to his retirement, he lodged a complaint under reg. 194 of the Australian Military Regulations claiming he should have been promoted. The complaint was referred direct to the Chief of General Staff and dismissed in January 1981. On 4 December 1981 the applicant applied to the court for further time within which to lodge an application for an order of review pursuant to s. 11(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), as the twenty-eight day period for lodging such an application had expired ten months earlier. Although the applicant had retired from the Army by the time the matter came before the court, he claimed that he had been prejudiced in his career in the Army and in later civilian life by the lack of promotion. On the question of delay the applicant gave evidence, accepted by the court, that throughout the whole of the ten month period he had been active in various ways in attempting to have the decision of the Chief of General Staff reviewed, but only recently became aware of his rights under the Act and immediately took steps to make application to the court.
Held: (1) As there was no evidence of any prejudice to the respondent or any other person caused by the delay and it cannot be said that the applicant rested on his rights, the fact of the delay is not a sound ground for refusing the application.
Lovett v. Le Gall (1975) 10 S.A.S.R. 479, approved.
(2) The existence of the court's discretion under s. 10(2)(b)(ii) of the Act to refuse to grant an application for an order of review is not a sound ground for refusing…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Doyle, J.J.M. v. The Chief of the General Staff [1982] FCA 129 ((1982) 71 FLR 56)
Case
[1982] FCA 129
Decision Date
CaseChat Overview and Summary
The case of Doyle v Chief of General Staff involved a military member seeking judicial review of a decision made under the Australian Military Regulations. The applicant, Doyle, sought an extension of the time within which to lodge his application for review under the Administrative Decisions (Judicial Review) Act 1977. The application was heard by the Federal Court of Australia. The primary legal issue before the court was whether the applicant had a sufficient ground to justify an extension of time beyond the statutory period prescribed for lodging an application for review, and whether Doyle was a "person aggrieved" as required by the Act. Additionally, the court had to consider if there was an alternative remedy available to Doyle.
The Federal Court found that Doyle had a reasonable basis for the delay in lodging his application, and thus, the court exercised its discretion to grant an extension of time. The court held that Doyle was indeed a "person aggrieved" by the decision, entitling him to seek judicial review. Furthermore, the court determined that there was no alternative remedy available to Doyle that could provide him with the same level of redress as judicial review. Consequently, the court granted Doyle's application for an extension of time, allowing him to lodge his application for review by a specified date.
In light of the above, the court ordered that Doyle's application for an extension of time within which to lodge his application for an order of review was granted. The applicant had up to and including 4 December 1981 to lodge such application. The prescribed period for lodging the application had expired on 2 February 1981, but due to the court's decision, Doyle was allowed to proceed within the extended timeframe.
Orders
Orders of the court
The applicant's application for extention of time within which to lodge his application for an order of review is granted.
The applicant has up to and including 4 December 1981 to lodge such application.
"11(1) An application to the Court for an order of review -
(a) shall be made in such manner as is prescribed by Rules of Court;
(b) shall set out the grounds of the application; and
(c) shall be lodged with a Registry of the Court and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, . . . shall be so lodged within the prescribed period or within such further time as the Court (whether before or after the expiration of the prescribed period) allows.
(2) . . .
(3) The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision is made and ending on the twenty eighth day after -
(a) if the decision sets out the findings of material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant; or
(b) in a case to which paragraph (a) does not apply -
(i) . . .
(ii) . . .
(iii) . . . "
For the purpose of this application which is in effect for an extension of time within which to lodge the application for an order of review, it was accepted that the period prescribed by s.11(3) expired on Monday 2 February 1981, the document provided for by s.11(3) having been furnished to the applicant on 5 January 1981. As the application to this Court for a order of review was not lodged in the Registry in Adelaide until 4 December 1981, it is apparent that an extention for a period in excess of