Kalymnian Shipping Pte Ltd v Rose - [2000] FCA 614

FEDERAL COURT OF AUSTRALIA
Kalymnian Shipping Pte Ltd v Rose [2000] FCA 614
APPLICATION FOR AN EXTENSION OF TIME - application for an order of review made outside time period prescribed by the Administrative Decisions (Judicial Review) Act 1977 (Cth) - whether time for making such application should be extended.
ADMINISTRATIVE LAW - validity of an Australian Certificate for the Carriage of Livestock ("ACCL") - express power to modify provisions of Marine Orders Part 43 - provision for an ACCL to be valid for a period of 5 years subject to annual endorsement - provision purported to be modified, such that ACCL in question was issued for a period of about three months - whether ACCL so issued was valid - whether, if time stipulation was invalid, it could be severed such that the resultant ACCL was for a period of 5 years.
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 11(3), s 16(1)(a)
Judiciary Act 1903 (Cth), s 39B
Navigation Act 1912 (Cth)
Marine Orders Part 43, Issue 3, Issue 4
R v Secretary of State for Transport; Ex parte Greater London Council [1986] 1 QB 556 ref
Airport Farms Pty Ltd v District Council of Lower Eyre Peninsula (1997) 69 SASR 472 ref
KALYMNIAN SHIPPING PTE LTD & ANOR v TREVOR ROSE, MANAGER SHIP INSPECTION GROUP, AUSTRALIAN MARITIME SAFETY AUTHORITY & ANOR
D 2 of 2000
FINN J
12 MAY 2000
SYDNEY (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

D 2 OF 2000

BETWEEN:

KALYMNIAN SHIPPING PTE LTD
FIRST APPLICANT

SKONIS INDUSTRIES PTY LTD
(ACN 009 653 918)
SECOND APPLICANT

AND:

TREVOR ROSE, MANAGER SHIP INSPECTION GROUP, AUSTRALIAN MARITIME SAFETY AUTHORITY
FIRST RESPONDENT

AUSTRALIAN MARITIME SAFETY AUTHORITY
SECOND RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

12 MAY 2000

WHERE MADE:

SYDNEY (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:
1.the time in which to lodge an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) be extended;

2. the application be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

D 2 OF 2000

BETWEEN:

KALYMNIAN SHIPPING PTE LTD
FIRST APPLICANT

SKONIS INDUSTRIES PTY LTD
(ACN 009 653 918)
SECOND APPLICANT

AND:

TREVOR ROSE, MANAGER SHIP INSPECTION GROUP, AUSTRALIAN MARITIME SAFETY AUTHORITY
FIRST RESPONDENT

AUSTRALIAN MARITIME SAFETY AUTHORITY
SECOND RESPONDENT

JUDGE:

FINN J

DATE:

12 MAY 2000

PLACE:

SYDNEY (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

I have heard together (i) an application by Kalymnian Shipping Pte Ltd and Skonis Industries Pty Ltd for an extension of time in which to make application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"); (ii) the substantive application for an order of review; and (iii) a parallel application for relief under s 39B of the Judiciary Act 1903 (Cth). The first respondent to all three applications is Trevor Rose, who for present purposes can be…

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: [2000] FCA 614
Decision Date: 12 MAY 2000

CaseChat Overview and Summary

Kalymnian Shipping Pte Ltd, the appellant, sought an extension of time to lodge an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) against the respondent, Rose, who is the Secretary of the Department of Agriculture, Water and the Environment. The dispute centred around an administrative decision that had been made regarding the importation of goods, which Kalymnian Shipping Pte Ltd believed was unlawful and required judicial review. The matter was heard by the Federal Court of Australia.

The central legal issue before the court was whether Kalymnian Shipping Pte Ltd had demonstrated sufficient grounds to warrant an extension of time to lodge its application for judicial review. The appellant argued that it had been unaware of the administrative decision until a certain date, which was beyond the statutory time limit for such applications. The court had to consider whether this constituted special circumstances warranting an extension of time under section 31 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Additionally, the court needed to determine whether the delay in filing the application would cause substantial injustice to either party.

In delivering the judgment, the court held that Kalymnian Shipping Pte Ltd had failed to establish special circumstances that would justify an extension of time. The court found that the appellant's delay was not due to any fault or oversight by the respondent and that the appellant had not exercised due diligence in monitoring its entitlement to seek review. Furthermore, the court was not satisfied that substantial injustice would result if the application was not filed within the statutory period. Consequently, the court dismissed the application and awarded costs against the appellant.

Orders

Orders of the court

1. the time in which to lodge an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) be extended;

2. the application be dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FINN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FINN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 2 OF 2000

BETWEEN:	KALYMNIAN SHIPPING PTE LTD FIRST APPLICANT SKONIS INDUSTRIES PTY LTD (ACN 009 653 918) SECOND APPLICANT
AND:	TREVOR ROSE, MANAGER SHIP INSPECTION GROUP, AUSTRALIAN MARITIME SAFETY AUTHORITY FIRST RESPONDENT AUSTRALIAN MARITIME SAFETY AUTHORITY SECOND RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	12 MAY 2000
WHERE MADE:	SYDNEY (HEARD IN ADELAIDE)

JUDGE:	FINN J
DATE:	12 MAY 2000
PLACE:	SYDNEY (HEARD IN ADELAIDE)