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Hickey v Australian Telecommunications Commission

Hickey v Australian Telecommunications Commission

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Case Copied 20 May 1983 24 min read

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Re: DARRELL HICKEY, EDWARD CARROLL, CATHERINE BUXTON, MICHAEL DURKIN, BRETON
WICKS, TERRENCE PEDRINA, JOHN KANONIUK, ALLEN MAXTED, JILLIAN MILCZAREK,
TREVOR SELBY
And: AUSTRALIAN TELECOMMUNICATIONS COMMISSION (1983) 72 FLR 291
No. NSW G34 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Administrative Law - Judicial review - Application for extension of time to lodge application under Administrative Decisions (Judicial Review) Act 1977 - decision to "stand-down" employees following declarations under s.43A of the Telecommunications Act 1975 - Principles relevant to granting extension of time - Undue delay.

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

Telecommunications Act 1975, s.43A

Administrative Law - Judicial review - Application for extension of time to lodge application under Administrative Decisions (Judicial Review) Act 1977 (Cth) - Decision to "stand down" employees following declarations under s. 43A of the Telecommunications Act 1975 (Cth) - Principles relevant to granting extension of time - Undue delay - Relevance of public interest and prejudice - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 11 - Telecommunications Act 1975 (Cth), s. 43A.

HEADNOTE

During a period of industrial dispute the respondent "stood down" certain employees and made directions under s. 43A of the Telecommunications Act 1975 (Cth) that those employees should not be paid their salary for the relevant period. Following the end of the dispute the applicants' union commenced inquiries and sought legal advice as to the validity of the order to "stand down". The applicants gave no notice to the respondent of any intention to bring proceedings. The applications for extension of time (within which to lodge applications for orders to review) were lodged about eighteen months after the "stand down" orders.

Held:(1) That an applicant for extension of time maintains throughout the burden of showing why, in all the circumstances, the extension of time should be granted; neither the burden of proof nor an evidentiary burden shifts to the respondent.

Lucic v. Nolan (1982) 45 ALR 411, followed.

(2) That the court, in determining whether or not to exercise its discretion in favour of the applicant, should not confine its attention to the consequences to the applicant of a refusal to extend time; the court must take into account broader considerations. However, each individual case should be dealt with on its own facts.

Lucic v. Nolan (1982) 45 ALR 411, followed.

Doyle v. Chief of General Staff (1982) 71 FLR 56; Duff v. Freijah (1982) 62 FLR 280; Ralkon Agricultural Co. Pty Ltd v. Aboriginal Development Commission (1982) 69 FLR 328; Becerra v. Fowell (unreported, Morling J., 18 February 1983, Federal Court of Australia), referred to.

(3) That applications for enlargement of time to bring applications under the Judicial Review Act are not merely inter partes adversary proceedings; questions of public interest are involved and delay by an applicant in bringing his application is relevant; in some cases delay, unaccompanied by prejudice to the respondent, may be contrary to 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

Case: [1983] FCA 96
Decision Date: 20 MAY 1983

CaseChat Overview and Summary

The applicants in Hickey v Australian Telecommunications Commission sought to challenge the decisions of the Australian Telecommunications Commission to "stand-down" certain employees following declarations under section 43A of the Telecommunications Act 1975. The case was heard in the Federal Court of Australia. The applicants applied for an extension of time to lodge their application for judicial review under the Administrative Decisions (Judicial Review) Act 1977, citing various reasons for the delay, including the complexity of the case and the need to consult with affected employees.

The primary legal issues the court needed to address were whether the applicants had a sufficient basis for an extension of time and whether their delay was undue, potentially warranting a refusal of the application. The court had to consider the principles relevant to granting an extension of time, including the need for promptness, the existence of a reasonable excuse for delay, and the potential for prejudice to other parties if the extension were granted. The court also had to weigh the applicants' arguments against the principle that applications for judicial review should not be entertained if they result in undue delay, which could prejudice the respondent.

In assessing the applicants' request for an extension of time, the court considered the extent of the delay, the reasons provided for the delay, and the potential impact on the respondent. The court found that the applicants had not provided a compelling reason for their delay and that their request came too late, potentially causing significant prejudice to the respondent. Consequently, the court held that the delay was undue and dismissed the application for an extension of time. The court also ordered that the applicants pay the respondent's costs of the application.

Orders

Orders of the court

1. The application be dismissed.

2. The applicants pay the respondent's costs of the application.

Orders accordingly.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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