Maurency and Australian Sports Drug Agency

[2001] AATA 401

DECISION AND REASONS FOR DECISION [2001] AATA 401

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2001/283

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      ROBERT  MAURENCY  
  Applicant

And    AUSTRALIAN SPORTS DRUG AGENCY        
  Respondent

DECISION

Tribunal       Senior Member M D Allen

Date14 May 2001

PlaceSydney

Decision      The application by the Applicant pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 to extend the time in which to make an application for the review of a decision by the Australian Sports Drug Agency made the 12th day of January 2001 is extended to the 2nd day of March 2001.
  (Sgd)                  M D ALLEN
  ..............................................
  Senior Member
CATCHWORDS

PRACTICE AND PROCEDURE  -  Extension of time.  Applicable principles.  No prejudice to Respondent. 

Australian Sports Drug Agency Act 1990 and Regulations
Administrative Appeals Tribunal Act 1975 - subs29(7)

Hunter Valley Developments Pty Ltd v Cohen 3 FCR 344
Brisbane South Regional Health Authority v Taylor 186 CLR 541
Comcare v A'Hearn 119 ALR 85
Windshuttle v Deputy Federal Commissioner of Taxation 46 FCR 235
Lucic v Nolan 45 ALR 411
Re Commonwealth of Australia and Anor; Ex parte Marks [2000] HCA 67

REASONS FOR DECISION

14 May 2001           Senior Member M D Allen

1. By application lodged with the Tribunal on 2 March 2001 the Applicant sought review of a decision by the Respondent made 12 January 2001 to make an entry on the Register of Notifiable Events following his failure to provide a urine sample for drug testing on 10 December 2000.

2. The decision was notified to the Applicant by letter dated 12 January 2001, and directed to him at his place of residence at Oxford in the United Kingdom.  That letter was apparently received by the Applicant on 20 January 2001.

3. As the application seeking a review of the Respondent's decision was made to the Tribunal more than 28 days after notification of the decision to the Applicant at the same time as the application for review was lodged with the Tribunal, an application to extend the time in which to lodge the said application was also made.

4. The said application to extend time originally came on for hearing before me at Sydney on 30 March 2001.  Unfortunately the notice advising of the hearing to extend time, which notice was dated 19 March 2001, was forwarded direct to the Respondent rather than to its solicitors.  I would have thought that there was sufficient time for the Respondent to notify its solicitors of the hearing but this was not done so that on 30 March 2001 the only appearance before me was on behalf of the Applicant.  A direction was therefore given that the paries make written submissions.

5. At the hearing on 30 March 2001 I took in as exhibits the following documents, namely:

   Exhibit A1   :    Affidavit of Simon Horton sworn 30 March 2001

Exhibit A2:    Copy letter from Applicant to Respondent dated 24 January 2001.

1. Exhibit A1 is an affidavit sworn by the Applicant's solicitor.  So far as is relevant it states that he has experienced delays in obtaining instructions due to the fact the Applicant is residing in the United Kingdom.

2. In Exhibit A2 the Applicant gives the following chronology:

   "10 December 2000       Urine sample requested.  I refused on the basis that I had retired from competition over 12 months before.

   11 December 2000        I emailed David Evans, Executive Director, JFA, advising him that I had been requested to provide a urine sample, and the basis on which I refused.

   13 December 2000        I received an email from David Evans saying there had been similar cases in the past and it could be easily fixed.

   31 December 2000        I received a letter (dated 18 December 2000) from Ms Anne Gripper, Manager, Drug Testing, advising me that I could make a submission within 7 days of receiving the letter if I had reasonable cause for failing to comply.

   2 January 2001  I left a telephone message for Anne Gripper

   3 January 2001              I spoke to Anne Gripper by telephone and told her of the circumstances surrounding my refusal.  She advised me to notify the JFA and ASDA in writing of these circumstances.  She specifically advised that an email would be sufficient for this purpose.

   4 January 2001             I sent an email to JFA and ASDA as described and giving contact details should further information be required."

1. Accompanying the Applicant's application to the Tribunal is a copy of a letter dated 8 February 2001, forwarded by the Respondent to the Applicant.  That letter confirms receipt of the Applicant's letter of 24 January 2001.  The letter also states that notwithstanding the arguments advanced by the Applicant, the Respondent considered that he was still, at the time of the requested drug test, a competitor as that term is defined in the Australian Sports Drug Agency Act 1990 and was adhering to its original decision.

2. The letter of 8 February 2001 also made reference to the letter dated 12 January 2001 in which it is alleged that the Applicant's rights of appeal are outlined. 

3. The letter of 12 January 2001 includes the following paragraph:

   "In accordance with Regulation 61 of the Regulations, you may apply to the Administrative Appeals Tribunal (AAT) for review of ASDA's decision to enter your details on the Register."

1. In my opinion, that notification of appeal rights is defective in that it does not state the time in which an application to the AAT must be lodged.

2. In considering the application to extend time, the attention of the Tribunal must be directed to the well known principles enunciated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen 3 FCR 344 at 348-9. In addition, the overriding test is, as stated by the High Court in Brisbane South Regional Health Authority v Taylor 186 CLR 541, namely that an applicant for an extension of time has the onus of showing that the justice of the case requires the discretion to by exercised favourably and to do so must show that an extension beyond the limitation period would not result in significant prejudice to the prospective defendant (Respondent).

3. However, as also pointed out in Brisbane South Regional Health Authority supra the prospective defendant (or Respondent) bears an evidentiary onus of raising "any consideration telling against the exercise of the discretion" (Toohey and Gummow JJ at p547).

4. The criteria set forth by Wilcox J in Hunter Valley Developments Pty Ltd supra at 348-349 refer to an application for an extension of time pursuant to the Administrative Decisions (Judicial Review) Act 1977 but similar principles have always been applied to extensions of time pursuant to subs29(7) of the Administrative Appeals Tribunal Act 1975. The principles are:

   "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 to do so.  The 'prescribed period' of twenty-eight days is not to be ignored … Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained … 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 …

   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' …) and a case where the decision-maker was allowed to believe that the matter was finally concluded.  …

   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 …

   4.    However, the mere absence of prejudice is not enough to justify the grant of an extension … In this context, public considerations often intrude … A delay which may result, if the application is successful, in the unsettling of other people … or of established practices … 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 …

   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 …"

1. In this matter there is no real explanation for the delay except that the Applicant's solicitor experienced difficulties in getting instructions due to the Applicant residing in the United Kingdom.  However, that is not fatal to the Applicant's claim – see Comcare v A'Hearn 119 ALR 85.

2. By his letter of 24 January 2001 the Applicant made the Respondent aware he was still disputing the decision for which he now seeks review.

3. I cannot see what prejudice would accrue to the Respondent in allowing the extension.  The type of prejudice required to defeat an application to extend time was referred to by Von Dousa J in Windshuttle v Deputy Federal Commissioner of Taxation 46 FCR 235 at 249. Prejudice of that kind does not arise here.

4. So far as public considerations are concerned I cannot see that they outweigh in this matter the Applicant's interests in challenging the impugned decision.  It is not as if other parties have changed their position as a result of the decision which it sought to review.

5. So far as the merits of the application are concerned I accept the submissions by Ms Rees, of counsel for the Applicant, that it is open to the Applicant to show "reasonable cause" and that the failure by him to advise the Australian Judo Federation of his retirement does no more than deprive him of the benefit of the presumption in subs2A(3) of the Australian Sports Drug Agency Act 1990.

6. So far as considerations as between the Applicant and other persons in a like position is concerned, I do not consider that to be a real consideration in this matter.

7. As stated above, I cannot see how the Respondent could be prejudiced by the delay in this matter.  Although Fitzgerald J (as he then was) did say in Lucic v Nolan 45 ALR 411 at 416 that the prima facie rule is that proceedings commenced out of time will not be entertained (see also McHugh J in Re Commonwealth of Australia and Anor; ex parte Marks [2000] HCA 67 at para 16), in this matter a good reason for mitigating the harshness of that prima facie rule is the failure by the Respondent to notify the Applicant of the time limit in which an application to the AAT had to be lodged.

8. Having considered all the material in this matter I am satisfied that an extension of time is necessary to do justice between the parties and should be granted to the Applicant.  The decision of the Tribunal will be therefore that the time in which to lodge an application to review a decision by the Australian Sports Drug Agency made on the 12th day of January 2001 is extended to the 2nd day of March 2001.

   I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of:

   Senior Member M D Allen

   Signed:         Kwai-Ling Wong           .....................................................................................
     Associate

   Date of Hearing  30 March 2001
   Date of Decision  14 May 2001
   Counsel for the Applicant        Ms K Rees
   Solicitors for the Applicant       Magney & Rhodes
   Solicitors for the Respondent Moray & Agnew