Nolan, Ross Samuel v Development Allowance Authority - [1997] FCA 86

CATCHWORDS

ADMINISTRATIVE LAW - whether applicant should be granted extension of time to institute appeal against decision of the Administrative Appeals Tribunal - relevant considerations - merit of claim - whether applicant is a person affected by a reviewable decision of the Tribunal.

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Development Allowance Authority Act 1992 (Cth) s 93, s 119

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Lucic v Nolan (1982) 45 ALR 411
Aussie Airlines Pty Ltd v Australian Airlines Ltd
(1996) 139 ALR 663
Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250

ROSS SAMUEL NOLAN v DEVELOPMENT ALLOWANCE AUTHORITY
No VG 727 of 1996

GOLDBERG J
MELBOURNE
4 FEBRUARY 1997

FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No VG 727 of 1996

B E T W E E N:

ROSS SAMUEL NOLAN
Applicant
and

DEVELOPMENT ALLOWANCE AUTHORITY
Respondent

Coram: GOLDBERG J

Place: MELBOURNE

Date: 4 FEBRUARY 1997

JUDGMENT

The matter before me comes by way of an application for extension of time to file or serve a notice of appeal from a decision of the Administrative Appeals Tribunal. The matter comes before me pursuant to section 44(2)A of the Administrative Appeals Tribunal Act which allows the institution of a notice of appeal out of time within such further time as the Court allows. The relevant chronology for the purposes of the application is that the application for extension of time was filed on 10 December 1996. It was supported by an affidavit sworn on 10 December 1996. The relevant factual situation which lies behind the application is as follows, and I summarise the facts briefly insofar as they are relevant for the purposes of this application.

There is a body known as the Development Allowance Authority ("the Authority") which is constituted under the Development Allowance Authority Act 1992 ("the Act"). It has a number of functions, in particular in relation to what I will call loosely infrastructure borrowings or bonds. In January 1996 the Authority decided to issue certain infrastructure borrowing certificates under Chapter 3 of the Act in relation to some proposed borrowings to fund the Melbourne City Link Project.

On 12 March 1996 the applicant Mr Ross Nolan, applied to the Authority to reconsider its decision to issue those certificates. On 11 April 1996 the Authority determined that the applicant was not a person who was affected by a reviewable decision and that the request for review did not fall within section 119(1) of the Act. On 12 April 1996 the Authority notified the applicant of its determination. The applicant applied to the Administrative Appeals Tribunal on 19 May 1996 pursuant to section 120(1) of the Act to review the decision of the Authority.

There was a hearing before the Tribunal and on 13 November 1996 the Tribunal handed down its decision. The formal decision recorded was that "the applicant is not a person affected by a reviewable decision and consequently the Tribunal lacks…

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.

Continue reading Nolan, Ross Samuel v Development Allowance Authority

Details

AGLC: Nolan, Ross Samuel v Development Allowance Authority [1997] FCA 86
Case: [1997] FCA 86
Decision Date: 4 FEBRUARY 1997

CaseChat Overview and Summary

In this case, the applicant, Ross Samuel Nolan, sought an extension of time to institute an appeal against a decision of the Administrative Appeals Tribunal (AAT). The Tribunal had ruled that Nolan was not a person affected by the reviewable decision of the Authority, thereby lacking jurisdiction to determine his application. The application for an extension of time was filed on 10 December 1996, supported by an affidavit that provided various reasons for the delay. The legal issues revolved around whether the application for an extension of time should be granted, considering the relevant principles and the merits of the potential appeal.

Justice Goldberg reviewed the relevant legal principles and case law, including observations by Fitzgerald J in Lucic v Nolan, principles enunciated in Hunter Valley Developments Pty Ltd v Cohen, and considerations of fairness and merit. The court also examined the merits of the potential appeal, focusing on whether Nolan could establish that he was a person affected by the reviewable decision. The court considered the statutory provisions of the Development Allowance Authority Act 1992 and the infrastructure borrowings provisions. Ultimately, the court concluded that Nolan's project was too remote and speculative to be considered a person affected by the decision, and the prospects of a successful appeal were highly unlikely. The court also considered the unsettling effect on other parties if the extension was granted.

Given the principles and considerations, the court found that the reasons provided by Nolan for the extension of time were misconceived and did not justify granting the extension. The court dismissed Nolan's application for an extension of time to file or serve a notice of appeal, and ordered that Nolan pay the respondent's costs of the application. The application was deemed to have failed, and the usual order applied that costs follow the event.

Orders