Hickey v Australian Telecommunications Commission

[1983] FCA 96

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 public interest and sufficient for a court to refuse to exercise its discretion in favour of the applicant.

(4) That in this case there was a real possibility of prejudice to the respondent and the applicants had failed to explain the delay satisfactorily or at all.

(5) That, therefore, the applications should be dismissed.

HEARING

Sydney, 1983, May 6, 20. #DATE 20:5:1983

APPLICATION.

Application for an extension of time pursuant to s. 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for the filing of applications for orders to review. The facts appear sufficiently in the judgment.

D. Bennett Q.C. and G. Wilson, for the applicants.

B. Tamberlin Q.C., and H. Shore, for the respondent.

Cur. adv. vult.

Solicitors for the applicants: Geoffrey Edwards & Co.

Solicitor for the respondent: B. J. O'Donovan, Commonwealth Crown Solicitor.

P.H.M.

ORDER

1. The application be dismissed.

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

Orders accordingly.

JUDGE1

This is an application pursuant to paragraph 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act") for an extension of time within which the ten applicants may lodge applications for orders of review under that Act.

The application relates to industrial action taken in June and July 1981 by members of the Administrative and Clerical Officers Association, Australian Government Employment ("ACOA") employed by the respondent, Australian Telecommunications Commission. The action was in support of a salary claim made on 27 May 1981. Industrial action in support of the claim commenced on 18 June 1981 and was taken by members of ACOA in all States of Australia. It did not involve persons going on strike but took the form of limited work bans imposed on specific or key tasks by ACOA members at particular offices or branches of the respondent. The disruption to the operations of the respondent was severe. The industrial action ceased after a meeting of officers of ACOA and the Ministers for Communications and Industrial Relations held on 26 July 1981. The dispute was formally settled by the decision of the Australian Conciliation and Arbitration Commission given on 23 December 1981.

During the period of industrial action the respondent made declarations pursuant to s.43A of the Telecommunications Act 1975 in respect of 1103 employees of the respondent who were members of ACOA. Section 43A so far as relevant provides:-

'43A.(1) Where an officer or employee refuses or fails to comply with a direction given by a person having authority to give the direction, being a direction with respect to work that he is performing or is to perform, the Commission may declare that the officer or employee is not to be paid salary.

....

(3) An officer or employee is not entitled to be paid salary in respect of any period in respect of which a declaration under sub-section (1) has effect, or is to be deemed to have had effect, in relation to him.'

No salary was paid to those employees during the period for which they were 'stood down'. The amounts of unpaid salary ranged from $30.00 to about $1500.00. There is evidence that the total unpaid salary amounts to over $250,000. Various branches of ACOA have been informed by the respondent that leave and other entitlements of the employees concerned will be affected by the s.43A declarations.

On 10 July 1981 the National Executive Committee of ACOA resolved that allowances should be paid to members who had been stood down and had not been paid salaries. On 7 August 1981 the National Executive Committee resolved that a study be undertaken of the possibility of commencing legal proceedings by or on behalf of members of ACOA to challenge the validity of the stand-downs. On or about 12 August 1981 Mr P.R. Munro, the National Secretary of ACOA, appointed Miss Susan Walpole, an industrial officer employed by ACOA, to undertake the proposed study. She was directed to gather relevant information as to the various stand-down procedures which applied to the members of ACOA who had been stood down, to so far as possible place individual cases into groups where similar facts existed so that representative cases could be identified. The report was completed on 26 November 1981. Following his consideration of the report Mr Munro directed that further information be collected and a final report completed. This final report was received by Mr Munro on 9 December 1981 which identified about 70 cases apparently warranting the consideration and advice of ACOA's solicitors. On 23 December 1981 Mr Munro requested legal advice from ACOA's solicitors with instructions to brief counsel where necessary.

Thereafter and until the filing of this application for extension of time on 25 February 1983 ACOA's solicitors conferred from time to time with senior and junior counsel. Counsel advised that more information was needed and steps were taken by ACOA and its solicitors to obtain it, including the sending of a questionnaire to 27 of the group of 70 members of ACOA. At least 19 of the 27 were interviewed by counsel and in due course draft affidavits were settled. The work carried out by the solicitors for ACOA and counsel and by ACOA's own employees to gather material is described in affidavits sworn by Mr G.J.T. Hart, the solicitor for ACOA, Mr Munro and Miss Walpole and needs no further elaboration by me.

Save for one matter which I will mention in a moment no notice was given by ACOA or any of its members to the respondent of the intention of any of the members to bring proceedings against the respondent in relation to the s.43A declarations. The first indication of any challenge to those declarations was the service upon the respondent of this application filed on 25 February 1983.

The declarations were made in July and August 1981. As early as 16 March 1982 consideration was given by ACOA and its legal advisers to the question of time limitations applicable to any proceedings, but it was thought that the material and information then available was not sufficient to enable proceedings to be commenced then and that the task of obtaining further information should proceed as quickly as possible.

Yet the respondent had no notice of any prospective proceedings until about eighteen months after the making of the s.43A declarations. As the applicants seek the Court's indulgence for an extension of time it is for them to explain why there was such long delay in bringing this application and why notice was not given earlier of the intention to bring it or, indeed, any other proceedings against the respondent.

The one matter relied on by counsel for the applicants as constituting some notice to the respondent of the intention of the applicants to proceed against it arises from two telexes. One telex was sent on 5 May 1982 on behalf of the Chief Manager of the Personnel and Industrial Relations Department of the respondent's South Australian branch to the South Australian branch of ACOA in these terms:-

'SUBJECT: VISIT TO WHYALLA DISTRICT WEEK

COMMENCING 10/5/82

IT IS UNDERSTOOD THAT ACOA OFFICIALS WILL BE VISITING WHYALLA DISTRICT DURING WEEK COMMENCING 10/5/82.

APPROVAL WILL NOT BE GRANTED FOR LEGAL COUNSEL TO ENTER COMMISSION PREMISES NOR WILL APPROVAL BE GRANTED FOR STAFF TO BE RELEASED DURING WORKING HOURS TO BE INTERVIEWED BY LEGAL COUNSEL.

THE NORMAL COURTESIES WILL BE EXTENDED TO APPROPRIATE ACOA OFFICIALS AND CONSULTATION WITH STAFF SHOULD BE CONFINED TO THE PROVISIONS OF S42A OF THE CONCILIATION AND ARBITRATION ACT.

TELEPHONE : [phone]'

A reply was sent by telex from the South Australian branch of ACOA to the State Manager of the respondent on 6 May 1982 in these terms:-

'SUBJECT : VISIT TO WHYALLA. YOUR TELEX 773 OF 5/5/82 REFERS.

ACOA MOST SUPRISED TO RECEIVE YOUR TELEX FORBIDDING ENTRY OF ACOA LEGAL COUNSEL ONTO TELECOM PREMISES, PARTICULARLY AS THIS IS THE FIRST INSTANCE OF REFUSAL ENCOUNTERED.

ACOA WILL, BY ONE WAY OR ANOTHER, ARRANGE FOR MEMBERS CONCERNED TO BE INTERVIEWED, AND I SUGGEST THAT IT WILL BE TO TELECOM'S DETRIMENT TO BE SEEN TO BE TAKING SUCH AN INSENSITIVE ATTITUDE.

THE PROPOSED INTERVIEWS ARE FOR THE PURPOSE OF ESTABLISHING THE FACTS SURROUNDING S43A USE LAST YEAR AND SHOULD CAUSE MINIMAL DISRUPTION TO TELECOM OPERATIONS.

IN THE INTEREST OF GOOD INDUSTRIAL RELATIONS YOU ARE URGED TO RECONSIDER YOUR DECISION.'

The telexes do no more, relevantly to this case, than establish that the South Australian branch of the respondent knew in May 1982 that ACOA was then investigating at Whyalla, South Australia, the facts surrounding the s.43A declarations made in mid-1981. There is no suggestion in the evidence that the knowledge of the existence or contents of the telexes extended or should have extended beyond the South Australian branch of the respondent to other branches or divisions of the respondent. I was informed by counsel for the applicants during argument that of the ten applicants only the ninth and tenth applicants, Jillian Milczarek and Trevor Selby, were at relevant times employed at Whyalla.

Approximately 90,000 people are employed by the respondent on a full time basis and approximately 2,000 people on a part time basis and they are employed in various parts of Australia. The nature of the services provided and the widespread deployment of staff have made it necessary for the respondent to provide in its various regions and branches a large amount of autonomy over the day to day running of its offices and operations.

I do not regard the telexes as putting the respondent on notice, even at its South Australian branch, of the intention of any of the ten applicants of their intention to bring proceedings against the respondent arising out of the s.43A declarations whether pursuant to the Judicial Review Act or otherwise.

It was accepted by all parties, for the purpose of this application, that each of the ten applicants was a person aggrieved by the s.43A declaration applicable to him or her and that each declaration was a decision to which the Judicial Review Act was applicable. It was accepted also that it was competent for each of the ten applicants to join in making the one application for extension of time which is before me.

I asked counsel for the applicants more than once during argument which part of s.11 was said by each of the applicants to apply to his or her application, but did not obtain an unequivocal answer. I do not say this critically of counsel at all because there are obvious difficulties in conducting a case on behalf of ten applicants each of whom has in one way or another a different case from the others, but this did not facilitate the task of the Court in dealing with the application. The matter is important because different considerations may apply to the exercise of the Court's power under particular provisions of s.11. For example, where there is a 'prescribed period' for the purposes of para. 11(1)(c) there is no statutory fetter imposed by the Judicial Review Act on the exercise of the Court's discretion to extend time for lodging an application for judicial review. If there is no 'prescribed period' in a particular case and para. 11(4)(a) or (b) applies, the Court may refuse to entertain an application for an order of review if it is of the opinion that the application was not made within a reasonable time after the decision was made. In forming that opinion the Court shall have regard to the particular matters mentioned in sub-s.11(5) and may have regard to such other matters as it considers relevant. In Lucic v. Nolan, 1 November 1982, unreported, Fitzgerald J. referred (at pp. 12 and 13) to the

'....obvious contrast between the terms of sub-s. 11(3) which provides a pre-emptive fixed period subject to a discretionary power of extension, and provisions like that of sub-s. 11(4) which do not fix any particular period but refer merely to what is in the court's opinion 'reasonable'.'

Finally, as I understand it, it was accepted by counsel for the applicants and by counsel for the respondent that the application fell to be determined on the basis that para. 11(1)(c) applied and that there was a prescribed period, namely the period commencing on the day on which the decision was made with respect to each applicant (July to August 1981) and ending on the 28th day after the day on which the s.43A declaration was furnished to each applicant. No fine distinction as to the precise date of the making or serving of the s.43A declarations was drawn by the parties, so I have approached the matter on the broad basis that the 28th day expired in each case by the end of September 1981, approximately 17 months before the filing of the application in this case.

The principles governing the exercise of the Court's power to allow extensions of time under s.11 have been considered in a number of cases by other members of this Court : By Fisher J. in Doyle v. Chief of General Staff (1982) 42 A.L.R. 283; Northrop J. in Duff v. Freijah (1982) 43 A.L.R. 479; Keely J. in Ralkon Agricultural Co. Pty. Limited v. Aboriginal Development Commission (1982) 43 A.L.R. 535; Fitzgerald J. in Lucic v. Nolan (supra); and Morling J. in Becerra v. Fowell, 18 February 1983, unreported.

Some differences of approach are discernible in those cases, generally being differences as to the emphasis which should be placed on various matters in deciding whether to allow an extension of time in a particular case. Some of those differences were referred to by Morling J. in Becerra's Case at pp. 11-12. Each of these cases was decided on its particular facts and the statements of principle must be understood in that light.

In Lucic's Case, after referring to certain matters of public concern relevant to the review of administrative acts and decisions, Fitzgerald J. said:-

'...one of the features of the Administrative Decisions (Judicial Review) Act is that it contains limitations with respect to the time for the commencement of proceedings. Where specific periods are fixed, they are quite short. That carries obvious implications. However, the time limitations are not absolute. In this, as in other matters arising under the Act, e.g. in respect of the relief which may be granted under s.16, the Court is given a discretion. Nonetheless, 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....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 do not think that, given proof of certain matters by an applicant, e.g. an explanation for his delay in making application, an evidentary onus shifts to the respondents to establish that prejudice will result if the extension is granted; nor, in my opinion, if the delay is explained and there will be no personal prejudice to the named respondents, should an extension always be granted. All else aside, there will often be no question of prejudice to a respondent decision maker.

It is neither necessary nor desirable, if indeed it would be possible, to enumerate the great variety of possibly material circumstances to be considered on an application for an extension of time. Nor, in my opinion, is it possible to identify particular circumstances or classes of circumstances which must automatically be excluded from consideration. Each individual case should be dealt with individually, giving due weight to prior decisions and what they reveal of judicial attitudes : cf. sub-ss. 11 (4) and (5). Whilst there are obvious reasons why there should be no attempt at a full investigation of the merits of the application for review on an application for an extension of time, I would not exclude from consideration in an appropriate case some obvious strength or weakness in an applicant's case or matters which might justify the refusal of relief, if the Court has a discretion to do so where a ground for relief is made out." (pp. 12 to 14).

Morling J. said in Becerra's Case that, if it became critical to do so, he would be disposed to adopt the view of Fitzgerald J. as to the proper approach to be taken in matters of this kind. I agree generally with the approach taken by Fitzgerald J. and in particular with the passages cited by me from his Honour's judgment.

I would add some remarks of my own. 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. Delay by an applicant in bringing his application is relevant. What weight the Court should give to mere delay unaccompanied by prejudice, if there could be such a case under the Judicial Review Act, is entirely a matter for the Court to determine in the particular case, but delay unaccompanied by prejudice is not necessarily to be placed to one side as irrelevant or as not operating against the success of the applicant's case. Delay without prejudice to the defendant in equity proceedings may not constitute laches sufficient to debar the plaintiff from equitable relief, but the Judicial Review Act is concerned with public considerations as well as private grievances attributable to decisions made under Commonwealth enactments. In some cases delay unaccompanied by prejudice may be a telling consideration against the exercise of discretion to enlarge time for bringing an application under the Judicial Review Act.

Although s.11 does not in terms place an onus on an applicant seeking an allowance for further time within which to lodge an application for an order of review, it is nevertheless incumbent upon him to satisfy the Court that the extension of time should be granted. It is not for the decision maker to establish that the applicant does not have a case for an extension of time. The applicant seeks an indulgence. It is for him to prove that he is entitled to it. But the Court should not surround the exercise of its discretion with unnecessary constraints such as a requirement that there be special circumstances or considerations of that kind. The statute does not require them. Nor should the Courts. It is best left to the good sense of the Judge hearing each case to determine whether, on the evidence before him, the Court's discretion should be exercised in favour of granting an enlargement of time to bring an application for an order of review.

In the present case about 18 months elapsed between the making of the s.43A declarations and the filing of this application for extension of time. It is true that much of that time was occupied by ACOA obtaining legal advice from its solicitors and counsel on various questions relating to the possibility of instituting proceedings against the respondent arising out of the making of those declarations. This conduct revealed neither speed nor inertia, but it demonstrated a very leisured approach to litigation. Not a word was spoken to the respondent of any intention to sue or even possibly sue it. I was invited by counsel for the respondent to consider whether this was due to deliberate tactics by ACOA but, as this would be entirely speculative, I do not propose to do so.

ACOA could have told the respondent soon after the events of July/August 1981 that it was considering on behalf of its members affected by the s.43A declarations whether they should commence proceedings against it under the Judicial Review Act or for the recovery of salary said to have been wrongly withheld by the respondent, and thus put it on notice of the real possibility of litigation. This did not happen.

In my opinion the delay of the applicants has not been explained satisfactorily or at all. Indeed not one applicant swore an affidavit in support of this application. Counsel has settled a draft affidavit for each applicant but the solicitor for each applicant still awaits instructions with respect to the draft. The drafts may be altered substantially, or a little or not at all. I have no idea. But more than 20 months have passed since the s.43A declarations were made and still there is no sworn evidence from any applicant.

The respondent asserts that it would suffer prejudice if leave is given to the applicants to apply for orders of review. The alleged prejudice is conveniently illustrated by the following extracts from the affidavit of Mr R.G. Orr, a legal officer employed in the Sydney office of the Crown Solicitor for the Commonwealth who, subject to the direction of the Deputy Crown Solicitor, has the conduct, care and control of this matter on behalf of the respondent. In his affidavit of 28 April 1983, which was not objected to, Mr Orr deposes, inter alia, to the following:-

'4. I crave leave to refer to the affidavit of Barry James O'Sullivan sworn the 26th day of April 1983 which sets out the extent of the industrial action taken by the Administrative and Clerical Officers Association ('ACOA') during June and July, 1981. That dispute extended to the offices of the Respondent throughout Australia and took various forms in different offices. This, together with the delegation of day-to-day control of regional areas and offices within the Respondent to those regional areas and offices resulted in the absence of any uniform format for the directions to perform duties under section 43A of the Act or as to the notification given to those persons of declarations under the same section placing them off pay. Further, the nature of the tasks performed by the individual recipients of directions under section 43A varies enormously throughout the Respondent's organisational structure. The nature of those duties is partially reflected in duty statements in respect of each position, some of which duty statements have been annexed to the draft affidavits annexed to the affidavit of Gregory James Tulk Hart sworn 25th of February 1983 and filed herein. The nature of the duties performed or to be performed by a given employee depend also upon oral instructions given by superior officers in the hierarchical chain reflected in the organisational structure of the Respondent.

5. I have read the affidavits filed herein and the draft affidavits of proposed applicants annexed thereto and say that in my opinion, real issues arise to be decided upon the hearing of any such applications as to, among others, the following matters:

(a) The precise terms in which directions were given to the prospective applicants by management employees of the Respondent and the precise terms in which replies were made.

(b) Whether such direction was with respect to work that the employee 'is performing or is to perform' within the meaning of section 43A(1) of the Act. This in turn may involve the making of findings about the duties of such an employee, including whether the employee was at the relevant time acting in the performance of higher duties, and this will depend on oral as well as documentary evidence.

(c) Whether what was said between management employees and persons stood down amounted to a declaration which complied with section 43A(2) of the Act.

(d) Whether having regard to what was said between the management employees and the persons stood down sufficient notice for the purposes of section 43A(10) of the Act was given or, where in writing, whether such notice had been given of that writing. From enquiries which I have instituted with and through employees of the Respondent, I am able to say that:

(i) the proposed applicants represent only a small portion of some 1103 members of A.C.O.A. stood down during the same period pursuant to section 43A of the Act;

(ii)in relation to each of the proposed applicants no comprehensive verbatim report of the relevant conversation has been maintained. In many cases, summaries have been recorded in the records of the Respondent by the relevant management employees which are brief only.

6. In my opinion, the preparation of the case on behalf of the Respondent in relation to the Orders for Review, if an extension of time were granted, has been rendered substantially more difficult by reason of the lapse of time which has occurred since the stand-downs took place and necessarily less complete than if the proposed applications had been made within the period prescribed by section 11 of the Administrative Decisions (Judicial Review) Act 1977. This is particularly so concerning those issues in the case referred to above which would or may turn upon the precise words used by the various persons.'

Mr B.J. O'Sullivan, the General Manager, Industrial Relations, of the respondent employed at its Melbourne headquarters, swore an affidavit on 26 April 1983 where he deposed to the likelihood of the same kind of prejudice to the respondent if this application is successful. He was cross examined, but the substance of his affidavit evidence was not affected.

A further ground of prejudice is advanced by the respondent namely, that to give leave to the commencement of substantive applications under the Judicial Review Act would exacerbate the relations between the respondent and its employees including the ten applicants and any other persons who may be inclined to bring similar applications, of whom there could be over 900. Mr O'Sullivan swore in his affidavit of 26 April 1983 inter alia:-

'15.The nature and extent of the work bans which came into force in the period up to June-June 1981 and the 'no work as directed no pay' response in relation to a large number of employees of the Respondent had a number of important consequences for the industrial management and the effective operations of the Respondent. A significant degree of tension and acrimony between management of the Respondent on the one hand and staff of the Respondent on the other was created. Personal relationships at work locations deteriorated considerably. Over the period of almost two years which has elapsed since the stand downs a great deal of time and effort has been expended by both management and staff in the various work places of the Respondent to improve the industrial relations atmosphere and the personal work relationships. More than anything else the passage of time has allowed the memory of particular activities which took place in the dispute to fade. Many of the wounds inflicted or perceived to be inflicted almost 2 years ago have healed. This has had significant benefits for both management and staff of the Respondent and, indirectly, for the customers of the Respondent.

16. I am unaware whether the individual Applicants, as distinct from the A.C.O.A. are seeking to have the Court review the decisions made in June to July 1981. I note that all their Affidavits are in draft form and unsworn. Certainly, from my observations in the work place and from reports submitted to me from time to time, I had formed the view that the process of healing so far as the individuals concerned was almost complete. It has never been suggested to me, or, to my knowledge, to any member of the management of the Respondent at any time over the period since the stand downs that these proceedings were pending or contemplated. I believe that for the matter to be now litigated after the lapse of about two years and for the decisions then made to be now reviewed under the Administrative Decisions (Judicial Review) Act 1977 with the consequent adversary stances being taken by management and employees of the Respondent would seriously disturb the co-operative working relationships which have now been substantially re-established. This is particularly so in the light of the differences which would inevitably arise as to details of conversations which took place at that time and in respect of which recollections have now faded. I believe that such an inquiry and examination at this stage would seriously and adversely affect the industrial relations and day to day operations of the Respondent as an organisation and its ability to provide the telecommunications network to the general public which it seeks, and is required by statute, to do.'

No evidence was called to rebut this evidence of Mr Orr and Mr O'Sullivan. In my opinion the matters referred to by Mr Orr establish the real possibility of prejudice to the respondent if this application for enlargement of time succeeds.

As to Mr O'Sullivan's evidence, it may be that the relations between the respondent and its employees will be harmed as Mr O'Sullivan fears if this application succeeds, but I place little weight upon this aspect of the matter, if only because the refusal of the application may itself do something to strain relations between the respondent and its employees. It may be that any problems which arose from such refusal would not outweigh the problems likely to arise from granting the application for extension and the subsequent prosecution of substantive applications under the Judicial Review Act but this is to enter the field of industrial relations. It has so many imponderables that I prefer to put it to one side when considering the outcome of this application.

A matter of limited relevance is that other avenues for relief may be available to the applicants other than the Judicial Review Act. For example, proceedings may be brought in the appropriate court for the recovery of salary said to be wrongfully withheld from the applicants where the validity of the s.43A declarations may be tested.

In all the circumstances I am not satisfied that the Court should allow further time within which the applicants may lodge applications for orders of review.

I should add that if I were considering this application as a substantive application for an order of review pursuant to sub-ss. 11(4) and (5) rather than an application for extension of time to bring such application pursuant to para. 11(1)(c) of the Judicial Review Act and the Court was therefore required for the purposes of sub-s.(5) to have regard to the matters mentioned therein, it would be my opinion that the application was not made within a reasonable time after the decisions under review were made and would in all the circumstances refuse to entertain an application for an order of review in relation to those decisions.

I would dismiss the application and order the applicants to pay the costs of the respondent.