Lindsay, Mary v Rose, Christopher, Registrar of the Immigration Review Tribunal
[1996] FCA 702
•12 AUGUST 1996
CATCHWORDS
ADMINISTRATIVE LAW - Judicial Review - application for extension of time under s 11 Administrative Decisions (Judicial Review) Act 1977 - 4 year delay in bringing application - principles to be applied in exercise of discretion - long delay in bringing application not adequately explained - public interest to be taken into account - extension of time refused - other discretionary relief also refused.
Migration Act 1958 (Cth) s 399
Administrative Decisions (Judicial Review) Act 1977 (Cth)
ss 11(1)(c), 11(3) and 11(4)
Judiciary Act 1903 (Cth) s 39B
Audit Act 1901 (Cth) s 31
Federal Court of Australia Act 1976 (Cth) s 21
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Maric v Comcare (1993) 40 FCR 244
Corlette v MacKenzie (1995) 39 ALD 10
Hickey & Ors v Australian Telecommunications Commission (1983) 47 ALR 517
Lucic v Nolan & Ors (1982) 45 ALR 411
David Jones Finance & Investments Pty Ltd & Anor v Commissioner of Taxation (1991) 28 FCR 484
Ainsworth & Anor v Criminal Justice Commission (1992) 175 CLR 564
Forster v Jododex Aust. Pty Ltd (1972) 127 CLR 421
No SG 90 of 1995
MARY LINDSAY v CHRISTOPHER ROSE, REGISTRAR OF THE IMMIGRATION REVIEW TRIBUNAL and SUSANNE TONGUE, PRINCIPAL MEMBER OF THE IMMIGRATION REVIEW TRIBUNAL
Branson J
Adelaide
12 August 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 90 of 1995
)
GENERAL DIVISION )
BETWEEN:
MARY LINDSAY
Applicant
- and -
CHRISTOPHER ROSE,
REGISTRAR OF THE
IMMIGRATION REVIEW TRIBUNAL
First Respondent
- and -
SUSANNE TONGUE,
PRINCIPAL MEMBER OF THE
IMMIGRATION REVIEW TRIBUNAL
Second Respondent
MINUTES OF ORDER
CORAM: Branson J
PLACE: Adelaide
DATE: 12 August 1996
THE COURT ORDERS THAT:
The application of the applicant for an extension of time within which to lodge her application for review is dismissed.
This proceeding is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 90 of 1995
)
GENERAL DIVISION )
BETWEEN:
MARY LINDSAY
Applicant
- and -
CHRISTOPHER ROSE,
REGISTRAR OF THE
IMMIGRATION REVIEW TRIBUNAL
First Respondent
- and -
SUSANNE TONGUE,
PRINCIPAL MEMBER OF THE
IMMIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR DECISION
CORAM: Branson J
PLACE: Adelaide
DATE: 12 August 1996
By an application dated 24 November 1995 the applicant has sought "review of the decision of each of the first and second respondents to calculate the remuneration of the applicant (a part-time member of the Immigration Review Tribunal) other than in accordance with the Migration Act and the determination of the Minister for Immigration Local Government and Ethnic Affairs ... made pursuant to Section 399 (formerly Section 156) of the Migration Act 1958 which decisions were constituted by a memorandum sent by the Second Respondent to
the Applicant on the 24th May 1991 and by a memorandum sent by the First Respondent to the Applicant on the 12th July 1991."
The relief claimed by such application is as follows:-
"1.(a) an order of Mandamus pursuant to Section 39B of the Judiciary Act 1901 (Commonwealth) requiring the Registrar to make payment of remuneration to the applicant in accordance with the Migration Act 1958 and the determination of the Minister made thereunder and dated the 22nd August 1989;
(b)further, or in the alternative, an order quashing the determination of the first named respondent of the 12th July 1991 and the decision of the second named respondent of the 24th May 1991.
2.(a) an order pursuant to Section 21 of the Federal Court of Australia Act granting a binding declaration of right that the remuneration of part-time members of the Immigration Review Tribunal shall (and at all relevant times, should have been) be determined in accordance with the Migration Act 1958 and with the determination in writing of the Minister dated the 22nd August 1989;
(b)further, or in the alternative, consequential relief in the form of an order directing the Registrar of the Immigration Review Tribunal to calculate and pay the remuneration of all part-time members of the said Tribunal in accordance with such declaration of right.
3.(a) An order pursuant to Section 16(1)(a) of the Administrative Decisions Judicial Review Act 1977 (Commonwealth) Act quashing the determinations referred to in paragraph 1(b) hereof.
(b)Further, or in the alternative, a declaration pursuant to Section 16(1)(c) of the said Act that the remuneration of part-time members of the Immigration Review Tribunal be determined in accordance with the Migration Act 1958 and with the determination in writing of the Minister dated the 22nd August 1989.
(c)In so far as is necessary, an extension of time pursuant to Section 11(1)(c) o the Act such as to enable the applicant to bring this application."
The application dated 24 November 1995 was amended on 2 February 1996 for the purpose only of correcting the descriptions of the respondents.
The respondents have by notice of motion dated 24 May 1996 sought orders that the proceeding commenced by the application be dismissed on the grounds that it discloses no reasonable cause of action, it is frivolous and vexatious and it is an abuse of the process of the Court.
BACKGROUND
The Immigration Review Tribunal ("the IRT") was established on 1 July 1989 upon the coming into operation of the Migration Legislation Amendment Act 1989 (Cth). Section 27 of the Migration Legislation Amendment Act 1989 inserted into the Migration Act 1958 (Cth) ("the Act") a new part headed "Part IIIA - Immigration Review Tribunal". The IRT provides independent review on the merits of certain migration decisions made under the Act.
Originally the IRT had 10 part-time members. In February 1990 5 additional part-time members were appointed. The applicant was one of these 5 additional part-time members. She was appointed on 19 February 1990 for a term expiring on 30 September 1994. She was reappointed, on her own application, for a further term from 1 October 1994 to 30 August 1999. The number of part-time members of the IRT has fluctuated since the initial appointment of the applicant between 15 and 18.
Section 64ZP(3) of the Act, later renumbered s156(3) and then s399(3), governed the remuneration payable to part-time members of the IRT from the time of the establishment of the IRT until 28 September 1995. It provided as follows:-
"The part-time members shall be paid remuneration and allowances as are determined by the Minister in writing."
On 22 August 1989 the then Minister of Immigration, Local Government and Ethnic Affairs purported to determine the remuneration and allowances for part-time members of the IRT. He did so by recording his agreement with a written proposal put to him in the following terms:-
"Remuneration and Allowances of Part-Time Members
8.Section 64ZP(3) states:
"The part-time members shall be paid remuneration and allowances as are determined by the Minister in writing."
9.It is proposed that the remuneration and allowances for part-time members of the Immigration Review Tribunal be the same as those set by the Remuneration Tribunal for the part-time Senior Members of the Veterans' Review Board and Social Security Appeals Tribunal. Currently these are:
Rate per diem fee $270
Travelling allowance $136 Capital City
per overnight stay $105 Other than
Capital City."
No further determination on this topic was made by the Minister between 22 August 1989 and 28 September 1995 when the Act was amended to provide for the remuneration of part-time members of the IRT to be determined by the Remuneration Tribunal.
As Dr Kenny, who appeared for the respondents, pointed out, the intended effect of the above determination is unclear. The position became even less clear in April 1992 when the remuneration fixed by the Remuneration Tribunal for Senior Members of the Veteran's Review Board and Senior Members of the Social Security Appeals Tribunal respectively ceased to be the same. It is agreed that after April 1992 the rate used to determine the remuneration of part-time members of the IRT followed the rate determined by the Remuneration Tribunal for Senior Members of the Veteran's Review Board.
The precise effect of the Minister's above determination is not an issue which needs to be addressed on the present application and motion.
It is agreed that the intention behind the Minister's determination was that part-time members of the IRT should be remunerated on a "time-spent" basis. They were so remunerated until January 1991.
Under cover of a memorandum dated 10 January 1991 from Pamela O'Neil ("Ms O'Neil"), the then Principal Member of the IRT, to the Senior Members of the IRT, Ms O'Neil circulated a paper outlining "proposed guidelines for the allocation of work to part-time members". Such paper included the following passages:-
"Our experience suggests that, for an average case, the examination on the papers, preliminary meeting and the taking of oral evidence will take about half a day. I therefore propose that part-time members be allocated two cases per day i.e. for the payment of one full-day's fee. In addition, a half-days' fee will be payable to a member responsible for writing the reasons for decision.
The benefits of this system are its administrative simplicity, the recognition of "writing-up" as a significant component of the work and the possibility it creates for members to undertake part of the work, e.g. review on the papers, elsewhere than at the registry without creating problems of accountability.
... It is recognised that additional time, and therefore payments, might also be needed for particularly difficult cases but I would expect this to occur very rarely. ..."
By minute dated 11 April 1991 directed to all part-time members of the IRT the Personnel Officer, Principal Registry of the IRT advised of the design of new claim forms for fees. Sent with the minute was a sample copy of the new claim form. Such form contained the following advice:-
"FEES:
Part-time Members are entitled to the following payments:
(A)a half-day's fee for each case that excludes write-up responsibilities
(B)a half-day's fee for writing the reasons for decision of each case
(C)fees as per the Remuneration Tribunal Determination for formal development sessions or similar organisational purposes."
The form did not make provision for the recording of the time spent by part-time members on case work.
The applicant gave evidence that she did not recall receiving the minute of 11 April 1991 or a sample copy of the claim form referred to in the minute. There is no suggestion, however, that the applicant did not submit her claims for fees using the forms provided by the IRT. I am satisfied that the applicant became aware of, and commenced to use, the new claim forms shortly after 11 April 1991.
On 24 May 1991 Ms O'Neil sent a memoranda to all part-time members of the IRT which included the following passage:-
"I have agreed for the payment arrangements for part-time members to be varied in the following ways -
a half-day payment is to be made once per month for continuing self-education in relation to legislation and similar matters. This recognises the time members need to spend to keep up-to-date with legislative amendments, decisions of other members, etc.
Interim payments to be made for work substantially completed in cases where significant delays in finalisation arise which are out of the control of the Tribunal (e.g. s121 adjournments)".
This is the first of the two memoranda referred to in the application. No complaint has been made on behalf of the respondents that it was not, in fact, sent to the applicant by the second respondent as alleged in the application.
The then Registrar of the Tribunal, Trevor Rodgers ("Mr Rodgers") wrote to the applicant on 12 July 1991. It is appropriate to set out the letter in full:-
"Dear Ms Lindsay
cc: All Senior Members
All Deputy Registrars
PART-TIME MEMBERS' FEES
On 24 May 1991, the Principal Member wrote to all part-time members to advise them of two variations in their payment arrangements - the payment of a monthly self-education fee and an endorsement of interim payments for case work.
We propose to implement these variations by paying fees in the following circumstances:
(A)A case fee in respect of every case allocated to the member. This fee may be claimed after a substantial part of the work on the review has been completed. Depending on the details of the case this could be after the first preliminary meeting or hearing attended by the member or once the case has been finalised. An additional case fee may be payable at the discretion of the Principal Member or a Senior Member where a case is particularly difficult and time consuming.
(B)A reasons preparation fee in respect of every case where the member was principally responsible for drafting the Tribunal's reasons. This fee may be claimed once the decision is published and is in addition to the case fee.
(C)A time based fee for attendance at courses or seminars with the prior approval of the Principal Member or Senior Member. The fee payable is dependent on the hours worked in accordance with the formulae adopted for part-time members of other bodies by the Remuneration Tribunal.
(D)A reading fee payable once per month for each calendar month where the member is available each month to sit on the Tribunal. This fee will be paid automatically on the first payday of each month and will be backadjusted from the month of June 1991.
The case fee, reasons preparation fee and reading fee are currently set at $150.50. The time based fee will be calculated according to the rules set down by the Remuneration Tribunal for part-time members of other bodies. The maximum payment will be $301 per day.
The case fee will be paid for each case irrespective of how it may be finalised. It is expected that those cases which may be withdrawn early or where a favourable decision can be made on the papers will generally balance those which may require additional effort to finalise. Further, additional case fees in respect of the one case may be authorised by the Principal Member or Senior Member for particularly difficult and time consuming cases.
The case fee may be claimed at any time after a substantial part of the work on the case has been completed. This could be after the first preliminary meeting or hearing held in the Registry in which the member takes part. At this stage, the member will have conducted a preliminary hearing and directed which investigations should be undertaken or have taken part in the hearing of the case. Either way, the member will normally have completed a substantial portion of the work on a case other than the reasons preparation.
If the member does not conduct the preliminary meeting, the case fee will not be paid until after the first hearing in which the member participates. If no hearing is held, or the member does not participate in the hearing, the case fee will be paid when the case is finalised.
The case fee will be paid irrespective of how the case is finalised (e.g. the case fee will be paid if the application is withdrawn or found to be ineligible).
The reading fee is payable for any calendar month during which the member is available to attend meetings and hearings of the Tribunal for any period during the month. If a member is not available for meetings or hearings during any calendar month (e.g. while overseas on holidays), he or she should advise the Principal Member or Senior Member. This advice will be notified to the Personnel Officer to make the appropriate adjustments to the reading fee payments.
A register of all claims and a copy of all claim forms will be maintained by each office. The original claim form, once signed by the Senior Member, is to be sent to the Personnel Officer, Principal Registry, for payment. The Personnel Officer will arrange payment of fees through the salary system, maintain a register of payments including deductions for tax, super etc. Your fortnightly payslip will include reference dates against each payment that relates to the cases claimed. The reference date for the monthly reading fee will be the 1st of each month.
A copy of the revised claim form is attached. Additional supplies of the form have been sent to each Registry and may be obtained from your Registry admin staff. It is proposed to have these forms professionally printed once we are sure that it is working well.
Please contact me if you wish to discuss these arrangements.
(signed)
Trevor Rodgers
REGISTRAR"
This is the second of the two memoranda referred to in the application. Again no point is taken that this letter was not, in fact, sent to the applicant by the first respondent as alleged in the application.
The applicant gave affidavit evidence that a few days after she received the letter of 12 July 1991 she telephoned Ms O'Neil, and advised Ms O'Neil that she had reservations about the legality of Ms O'Neil's decision to change the method of calculating the remuneration of part-time members. The applicant agreed in cross-examination that she had no memory of the precise words she used during this conversation with Ms O'Neil.
Ms O'Neil gave affidavit and oral evidence that she does not believe that she has ever had any discussions with the applicant about the remuneration payable to part-time members.
She acknowledges that she was generally aware that the applicant was concerned about issues such as her level of remuneration and the number of cases that she was being allocated. Her awareness, she said, came through discussions with the Registrar and other IRT members. She stated that if the applicant or any member of the IRT had raised concerns with her about the legality of the remuneration arrangements adopted by the IRT she "would have sought advice or taken significant action in relation to such concerns".
I find that if the applicant did speak to Ms O'Neil shortly after she received the letter of 12 July 1991, she failed to alert Ms O'Neil to any concern that she may then have had as to the legality of the method being used to calculate the remuneration of part-time members as opposed to the financial consequences to her of the utilisation of such method.
The applicant further gave affidavit evidence that on the day after she spoke to Ms O'Neil by telephone, she telephoned Mr Rodgers and complained about the manner in which her remuneration was being calculated. Mr Rodgers agrees that the applicant raised with him concerns about the changes to the arrangements for the remuneration of part-time members. His recollection is that she was concerned about how the new methodology was to apply and that she was unhappy with the new arrangements. He did not understand her to be challenging the legality of the new arrangements. I accept Mr Rodger's evidence. I find that in discussions between the applicant and Mr Rodgers in the twelve months following 12 July 1991, the applicant did alert Mr Rodgers to her concern about being remunerated on a "case" basis rather than on a "time-spent" basis, but that she did not give him reason to think that her concerns reflected doubt as to the legality of her remuneration being calculated on a "case" basis.
Maree Lesley Turner ("Ms Turner"), a former part-time member of the IRT, gave evidence that she first became aware of the decision of Ms O'Neil to change the method of calculating the remuneration of part-time members during the course of a meeting at the Sydney Registry of the IRT sometime before or in May 1991. She claimed that on that occasion she informed Ms O'Neil that she was of the view that Ms O'Neil had "no power to do that". Ms O'Neil gave evidence that whilst she recalled the meeting of which Ms Turner gave evidence, she did not recall Ms Turner, or anyone, suggesting that she had no power to introduce a changed method of calculating the remuneration of part-time members. I accept that it is more likely than not that some complaint about the changed method of calculating the remuneration of part-time members was raised at the meeting of which Ms Turner gave evidence. I find, however, that such complaint did not focus on the issue of the legality of such changes in such a way as to alert Ms O'Neil to any potential for a legal challenge to be instituted against her decision with respect to such changes. It may well be that such complaint was expressed in terms such as, "You can't do that", which are ambiguous as to whether legal or industrial principles are being invoked.
Shortly after her reappointment as a part-time member of the IRT in October 1994, the applicant did raise the issue of the legal basis of the system of remunerating part-time members of the IRT with the then Acting Registrar of the IRT, Giles David Short ("Mr Short"). Mr Short faxed to her at that time a copy of the Minister's determination of 22 August 1989.
In late January 1995 the applicant contacted the Remuneration Tribunal by telephone. She was put in contact with a Mr Bill Marshall. By letter dated 10 February 1995 the applicant sought advice from Mr Marshall as to whether or not she was being paid in the correct manner. It appears that at about this time the applicant may also have sought informal legal advice on the same topic.
By letter dated 3 March 1995 the applicant advised Ms O'Neil that she had received legal advice that her remuneration had not been calculated on a legally correct basis. By such letter she put forward for the first time a claim for "backpayment of fees" owing to her for past work. Ms O'Neil responded by letter dated 28 March 1995. Such letter canvasses a number of issues. It makes plain that Ms O'Neil does not propose to entertain any claim by the applicant for additional remuneration for work for which she had already been paid.
The applicant first formally consulted a solicitor on the issue of her remuneration in July 1995. No explanation for her not having done so promptly after her receipt of Ms O'Neil's letter of 28 March 1995 has been given. As mentioned above, these proceedings were commenced on 29 November 1995. No explanation has been given for the delay in instituting the proceedings between July and November 1995.
As to the earlier delays, the applicant's evidence was that she did not take any formal steps earlier than 1995 because she felt that it was "unseemly", that she did not wish to draw attention to the IRT and that the proceedings were "like washing one's dirty linen in public". Such feelings are understandable and I accept the applicant's evidence in this regard. The legal significance of such explanation is, however, slight.
The applicant asserts that throughout the period of time that the remuneration of part-time members was calculated by reference to the principles established by Ms O'Neil in May 1991, she had concerns about the legality of such principles. I entertain considerable doubt that this was so. I am satisfied that it was not until about November 1994 that she clearly placed any senior officer of the Commonwealth on notice that her concerns involved a challenge to the legality of the method by which such remuneration was challenged. I consider that the fact that she had not before this time sought a copy of the Minister's determination of 22 August 1996 adds support to the conclusion, which I have reached, that her earlier concerns related more to her level of remuneration and the number of cases allocated to her, than to the legality of the method of calculation of her remuneration. The applicant sought no formal legal advice on the issue of her remuneration until July 1995 and did not issue legal proceedings until November 1995.
It is appropriate to point out that in August 1991 Mr Short, who was then the Director of Research of the IRT, had concerns as to the legality of the arrangements for the payment of part-time members of the IRT. He recorded such concerns in a handwritten note dated 1 August 1991 on a copy note for file. His evidence was that he placed such copy note, with his handwritten note on it, into the in-tray of the Registrar of the IRT on about 1 August 1991. He heard nothing further about it. He did not pursue the matter, first, because it did not fall directly within his area of responsibility and he assumed that it was something that other people had looked at, and secondly, because he did not regard the arrangements as so seriously flawed as to require him to pursue the matter more actively. Mr Short holds a law degree but is not a legal practitioner. Mr Rodgers, to whom Mr Short's handwritten note was directed, gave evidence that it did not ever reach him. I accept the evidence of Mr Short and Mr Rodgers.
Mr Short also gave evidence that in late 1994 he discussed the arrangements for the remuneration of part-time members of the IRT with Ms O'Neil. I understand Mr Short's evidence to mean that he discussed the legality of such arrangements with Ms O'Neil. Ms O'Neil's evidence is that she does not recall Mr Short giving her any legal advice on the issue at that time. I am satisfied that Mr Short did not give Ms O'Neil legal advice at that time. However, I am satisfied that he did discuss the legality of the arrangements for the remuneration of part-time members of the IRT with Ms O'Neil in late 1994. She was from that time, in my view, alert to the existence of a legal argument adverse to the legality of the arrangements for the remuneration of part-time members of the IRT.
EXTENSION OF TIME
The applicant has sought an extension of time pursuant to s11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") within which to lodge with the Court her application for review. Section 11(1)(c) of the ADJR Act requires 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 to be lodged within the prescribed period or within such further time as the Court allows. On the evidence placed before me it is by no means clear that a document recording the terms of the decision which the applicant seeks to challenge was ever furnished to the applicant. The memoranda referred to in the application presuppose such decision but arguably do not record its terms. If no document recording the terms of the decision was furnished to the applicant, she does not require an extension of time within which to lodge her application: the Court would have a discretion to refuse to entertain the application if the Court were of the opinion that it was not made within a reasonable time after the decision was made (ADJR Act s11(4)). This case was argued on the basis that the applicant does require an extension of time pursuant to s11(1)(c) of the ADJR Act. I shall therefore proceed on that basis. In the circumstances of this case I am satisfied the result would be the same whether the issue of time were considered pursuant to s11(1)(c) or s11(4) of the ADJR Act.
In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-350 Wilcox J distilled from earlier decisions of judges of this Court certain guiding principles for the exercise of the Court's discretion under s11 of the ADJR Act. Although, as his Honour emphasised, such principles are not exhaustive of factors relevant to the exercise of the discretion and provide no more than a guide to the exercise of the discretion, they are, in my view, a useful starting point when an exercise of discretion under s11 of the ADJR Act is under consideration. The principles distilled by his Honour are contained in the following passage from his reasons for decision:-
"1.Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of twenty-eight days is not to be ignored (Ralkon Agricultural Co. Pty Ltd v. Aboriginal Development Commission (1982) 43 A.L.R. 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v. Nolan (1982) 45 A.L.R. 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff at 485; Chapman v. Reilly unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7).
2.Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J. in Doyle v. Chief of Staff (1982) 42 A.L.R. 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v. Allen (1984) 1 F.C.R. 287 with Lucic at 414-415 and Hickey v. Australian Telecommunications Commission (1983) 48 A.L.R. 517 at 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at 410) but also the "fading from memory" problem referred to in Wedesweiller v. Cole (1983) 47 A.L.R. 528.
3.Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at 287, Duff at 484-485, Hickey at 525-527 and Wedesweiller at 533-534.
4.However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, Lucic at 416, Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application.
5.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417, Chapman at 6.
6.Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion: Wedesweiller at 534-535.
In considering the authorities it is, I believe, important to bear in mind the point made by Sheppard J. in Wedesweiller at 531, relating to the diversity of decisions to which review may be sought under the Act:
"... there will be some cases which may be decided upon considerations which affect only the immediate parties. It will be appropriate to consider whether the delay which has taken place has been satisfactorily explained, the prejudice which may be caused to an applicant by the refusal of an application, the prejudice which may be suffered by the Government or a particular department if the application is granted and, generally, what the justice of the case requires. In other cases wider considerations will be involved."
He went on to mention the reference to public interest made by Fitzgerald J. in Lucic at 416.
It is in relation to the former category of cases, that is, those "which affect only the immediate parties" that the approach adopted by Bray C.J. in Lovatt v. Le Gall (1975) 10 S.A.S.R. 479 at 485 in respect of private litigation but adopted in this context in both Doyle at 287 and Duff at 485, is apposite namely:-
"If the defendant has suffered no prejudice, as when he was well within the limitation period of the plaintiff's claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant extension."
By contrast, in cases involving public administration, especially day to day matters such as personnel management, the public interest may well dictate refusal of an extension even after only a short delay."
The principles formulated by Wilcox J in Hunter Developments Pty Ltd v Cohen have generated wide support (see, for example, Maric v Comcare (1993) 40 FCR 244 and Corlette v MacKenzie (1995) 39 ALD 10).
In this case the applicant's delay in commencing these proceedings has been substantial. It would seem that by no later than April 1991 the applicant was put on notice of the decision which, in reality, is that which she seeks to challenge. That is, the decision made by Ms O'Neil in about January 1991 that the remuneration of part-time members of the IRT for case work done by them would be calculated principally by reference to the number of cases handled by them rather than by reference to the time that they spent on such cases. During April 1991 part-time members of the IRT were provided with new forms for the claiming of their fees. Such forms set out clearly that in future part-time members' entitlements to fees for case work would not relate directly to the actual time spent by them on such cases but would relate to the number of cases handled by them.
From the time of her receipt of the letter dated 12 July 1991 from Mr Rodgers, the applicant was aware of full details of the proposed new method of calculating the remuneration of part-time members of the IRT. It does not appear that the respondents, or any other officer or officers of the Commonwealth, had unambiguous notice of the applicant's intention to institute legal proceedings to challenge the method by which her remuneration was calculated until the receipt by Ms O'Neil of a letter dated 8 August 1995 from the applicant's solicitors. That is a period of more than 4 years from the time that the applicant became aware of the relevant decision. The "prescribed period" under s11 of the ADJR Act is, in effect, 28 days.
Even if it were appropriate to look only at the respective interests of the parties, such a delay would call for a powerful explanation. But it is not appropriate to look only at the interests of the parties. As Lockhart J stated in Hickey & Ors v Australian Telecommunications Commission (1983) 47 ALR 517 at 523:-
"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."
A relevant public interest is that of the maintenance of proper standards of public administration. However, as Fitzgerald J pointed out in Lucic v Nolan & Ors (1982) 45 ALR 411 at 416:-
"... that is not the only public interest to be served. Other matters of proper public concern which are readily identifiable as relevant to the review of administrative acts and decisions include the need for finality in disputes, the efficient use of public resources, the appropriate allocation and expenditure of public funds ...".
In this case it appears that 28 present and former part-time members of the IRT have had their remuneration calculated by the method which the applicant wishes to challenge. It appears that few, if any, of them have maintained the records which would be necessary to allow their remuneration to be recalculated by the method for which the applicant contends. The IRT itself does not have such records. I accept that it would be a costly exercise for the IRT to seek now to verify the amounts of time spent by present and former part-time IRT members on the business of the IRT. It appears that if the applicant's substantive application were successful, it may also be necessary for the remuneration of part-time members of the Refugee Review Tribunal to be recalculated. Their remuneration arrangements were apparently similar to those of the part-time members of the IRT. This exercise could involve up to 19 present and former part-time members of the Refugee Review Tribunal.
Even the applicant, it appears, does not have complete records of the time spent by her on work undertaken in her capacity as a part-time member of the IRT. I interpolate that this is somewhat curious given her contention that she always doubted the legality of the "case based" method of calculating her remuneration. The applicant does have records of the time spent by her on IRT business for portion of the period for which she claims additional remuneration. To that extent it appears that she might obtain a benefit, not necessarily available to other present and former part-time members of the IRT, should she be allowed to proceed with these proceedings and she ultimately obtains the orders that she seeks. Against this consideration is to be weighed the fact that the time within which she may bring proceedings in an Industrial jurisdiction to claim unpaid remuneration has apparently not expired.
I also consider it to be a relevant factor to take into account on this application that, had the applicant put either Ms O'Neil or Mr Rodgers on notice at an early stage of an intention to challenge the legality of the method being used to calculate the remuneration of part-time members of the IRT, legal advice could, and probably would, have been sought by them, and if so advised, they could have reverted to the previous method of calculation or sought a fresh determination by the Minister.
Another material factor in this case, in my view, is that the decision of which the applicant complains is not a continuing one. Since 29 September 1995 the Remuneration Tribunal has fixed the remuneration of part-time members of the IRT. The intervention of the court is thus not required to rectify any administrative decision of ongoing significance.
Having regard to all of the circumstances of this case, I do not consider that it is appropriate to grant to the applicant an extension of time within which to lodge her application for review. The application for such extension will be dismissed.
It is thus unnecessary to consider the notice of motion dated 24 May 1996 so far as it relates to the attempt by the applicant to invoke the jurisdiction of this Court under the ADJR Act.
SECTION 39B OF THE JUDICIARY ACT 1903 (CTH)
Section 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") invests this Court with original jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
I note that s39B of the Judiciary Act makes no reference to a writ of certiorari or to a jurisdiction to quash any determination or decision of an officer or officers of the Commonwealth. Section 39B of the Judiciary Act confers upon this Court the "full amplitude of the original jurisdiction of the High Court under s75(v) [of the Constitution]" (David Jones Finance & Investments Pty Ltd & Anor v Commissioner of Taxation (1991) 28 FCR 484 per Morling and French JJ at 497). No argument was addressed to me with respect to the jurisdiction of this Court pursuant to s39B of the Judiciary Act to make an order of certiorari. I say nothing further on this issue.
The applicant has claimed in this proceeding:-
(a)an order of mandamus requiring the first respondent to make payment of remuneration to the applicant in accordance with the Act and the determination of the Minister dated 22 August 1989; and
(b)an order quashing the determination of the first respondent dated 12 July 1991 and the decision of the second named respondent dated 24 May 1991.
Pursuant to their notice of motion dated 24 May 1996 the respondents have moved for these claims for relief, with all other claims for relief made by the application, to be dismissed on the ground, amongst others, that they disclose no reasonable cause of action.
An order of mandamus may only appropriately be made to secure the performance of a public duty. There is nothing before me to demonstrate that it is even within the lawful power of the first respondent to make payments of remuneration to the applicant, or indeed, to any person. The Act provides a method for the determination of the remuneration to be paid to members, which includes part-time members, of the IRT. It does not, however, contain provisions dealing with the payment of such remuneration to members. Section 31 of the Audit Act 1901 (Cth) provides that "[n]o money shall be drawn from the Commonwealth Public Account except in the manner provided by this Act." Nothing in the Audit Act 1901 supports any suggestion that the first respondent has the power, let alone a duty, to make payments of remuneration to the applicant.
As to the claim for an order "quashing the determination of the first named respondent of 12th July 1991 and the decision of the second named respondent of 24th May 1991", it is my view that neither the alleged determination nor the alleged decision purported to affect the rights of the applicant in the manner here complained of. The alleged determination purported to vary the payment arrangements of part-time members of the IRT in a manner apparently advantageous to them. It did not itself purport to introduce a "case" based as opposed to a "time-spent" basis of remuneration. The alleged decision merely advised of a proposed method of implementation of the variation referred to in the alleged determination.
Perhaps more significantly, it is plain that the respective authors of the alleged determination and the alleged decision had no legal authority to determine the remuneration to be paid to the applicant. Such authority was at the relevant time vested in the Minister. As the majority of the High Court pointed out in Ainsworth & Anor v Criminal Justice Commission (1992) 175 CLR 564 at 580:-
"The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review."
The contention advanced on behalf of the respondents that the claims made pursuant to s39B of the Judiciary Act disclose no reasonable cause of action is, in my view, correct.
I add that, in any event, the remedies sought by the applicant pursuant to s39B of the Judiciary Act are discretionary remedies. Those factors which persuaded me that the applicant's claim for relief pursuant to the ADJR Act should not now be entertained are equally persuasive against the applicant now obtaining discretionary relief pursuant to s39B of the Judiciary Act.
SECTION 21 OF THE FEDERAL COURT OF AUSTRALIA ACT 1976 (CTH)
Section 21 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") provides as follows:-
"(1)The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
(2)A suit is not open to objection on the ground that a declaratory order only is sought."
The power to grant declaratory relief is a discretionary power (Forster v Jododex Aust. Pty Ltd (1972) 127 CLR 421 per Gibbs J at 437; Ainsworth & Anor v Criminal Justice Commission per Mason CJ, Dawson, Toohey and Gaudron JJ at 581-582). In my view, the delay in the institution of these proceedings which I have found disentitles the applicant to an extension of time within which to lodge her application under the ADJR Act, similarly disentitles her to the discretionary remedy of a declaration. The consequential claim for relief made by the applicant by paragraph 2(b) of her claims for relief must fall with her claim for a declaration.
There will be an order that this proceeding is dismissed.
I certify that this and the preceding pages are a true copy of the Reasons for Decision of the Honourable Justice Branson.
Associate:
Dated:
Counsel for the Applicant : Mr C Kourakis
Solicitors for the Applicant : Hamilton Lindsay
& Hemsley
Counsel for the First and : Dr S Kenny
Second Respondents
Solicitors for the First and : Australian Government
Second Respondents Solicitor
Hearing Dates : 23 & 24 July 1996
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