Re: ROSS DUFF AND OTHERS And: FREDERICK H. FREIJAH AND OTHERS (1982) 62 FLR 280 VG Nos. 79-87 of 1982 Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY GENERAL DIVISION Northrop J.(1)
CATCHWORDS
Administrative Law - application for order of review - application for extension of time- whether time in which to lodge application with Registry can be granted in an application which has been lodged out of time - long delay - not explained by applicant - exercise of discretion.
Administrative Law - Applications for orders of review - Application seeking extension of time - Whether court had power to extend time for lodging applications - No satisfactory explanation of delay in lodging applications - Exercise of discretion by court - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 5, 8, 11 - Federal Court of Australia Act 1976 (Cth), s. 19 - Federal Court Rules, O. 54, r. 4; O. 3, r. 3 - Public Service Act 1922 (Cth), s. 32A - Conciliation and Arbitration Act 1904 (Cth).
HEADNOTE
The fifteen applicants were employed in the Department of Social Security under the Public Service Act 1922 (the Act). Each applicant was a member of the Administrative and Clerical Officers' Association which was an organization of employees under the Conciliation and Arbitration Act 1904, as amended. During November 1981 each applicant refused to perform normal duties because work bans were in force and, in purported exercise of powers under s. 32A of the Act their superiors declared that each applicant was not to be paid a salary.
On 22nd June, 1982, nine applications for an order of review, involving the fifteen separate applicants, were lodged pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977, as amended, (the Judicial Review Act).
The persons making the declarations, together with the persons comprising the Public Service Board of Commissioners, were named as respondents. In each application the latest prescribed period ended on 23rd December, 1981, and orders were sought by motion on notice extending the time for making each application until 22nd June, 1982. The respondents to each application filed a notice of objection to competency on the grounds that the applications had been lodged out of time.
Held: (1) The court had power to make an order under s. 11(1)(c) of the Judicial Review Act, extending the time for lodging an application under s. 11 of the Judicial Review Act, although that application had been lodged after the expiration of the prescribed period.
Streimer v. Tamas, (1981) 54 FLR 253, referred to.
(2) The court was not satisfied that the applicants had satisfactorily explained the delay in lodging their applications and the delays of the association were considered to be the delay of the applicants.
(3) The…
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
Duff, R. & Ors v. Freijah, F.M. & Ors [1982] FCA 191 ((1982) 62 FLR 280)
Case
[1982] FCA 191
Decision Date
CaseChat Overview and Summary
The case of Duff v Freijah involved an application for an order of review concerning the timeliness of lodging an application with the court registry. The applicant, Duff, sought an extension of time to lodge the application, which had been filed outside the prescribed timeframe. The delay in filing was significant, and the applicant did not provide a satisfactory explanation for the late submission. The court was required to decide whether it had the discretion to grant an extension under these circumstances.
The primary legal issue before the court was whether the time in which to lodge an application with the registry could be extended in cases where the application had already been lodged out of time. The court considered whether the applicant's significant delay and lack of explanation justified the exercise of its discretion to grant an extension. The court also examined the principles of administrative law that underpin the timely lodging of applications and the role of judicial discretion in exceptional circumstances.
In deciding the matter, the court held that while it possessed the discretion to extend time in certain cases, the applicant's long delay and failure to provide a reasonable explanation for the late filing weighed heavily against granting an extension. The court emphasised the importance of adhering to prescribed timeframes and the need for a compelling reason to justify an extension. Ultimately, the court declined to exercise its discretion in favour of the applicant, affirming the principle that timely compliance with procedural requirements is generally expected. The application for an extension of time was dismissed.
No further orders were made by the court in relation to the application for review. The decision underscores the importance of adhering to procedural timelines in legal applications and the limited circumstances in which judicial discretion may be invoked to permit late filings.