Regan v Commonwealth of Australia

[2001] FCA 1289

FEDERAL COURT OF AUSTRALIA

Regan v Commonwealth of Australia [2001] FCA 1289

PRACTICE AND PROCEDURE – application for leave to appeal out of time.

EDWARD REGAN v COMMONWEALTH OF AUSTRALIA AND DISCIPLINARY APPEAL COMMITTEE
N 1326 OF 2000

LEE, MARSHALL, KATZ JJ
SYDNEY
23 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1326 OF 2000

BETWEEN:

EDWARD REGAN
APPLICANT

AND:

COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENT

DISCIPLINARY APPEAL COMMITTEE
SECOND RESPONDENT

JUDGES:

LEE, MARSHALL, KATZ JJ

DATE OF ORDER:

23 MAY 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal be refused.

2.        The applicant pay the first respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1326 OF 2000

BETWEEN:

EDWARD REGAN
APPLICANT

AND:

COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENT

DISCIPLINARY APPEAL COMMITTEE
SECOND RESPONDENT

JUDGES:	LEE, MARSHALL, KATZ JJ
DATE:	23 MAY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. After adjourning to consider the application for leave to appeal, the Court has decided that leave should be refused and we now deliver our reasons for that determination.

2. As indicated, this is an application for leave to appeal from a decision of a judge of this Court (Lindgren J) given on 13 August 1998.  The application for leave was filed on 13 December 2000.  The background to the application for leave can be shortly stated. It involves an application for judicial review of an administrative decision, namely, that a disciplinary penalty be imposed on the applicant for alleged dereliction of duty as an officer in the Australian Protection Service. It is contended that the decision imposed an improper penalty in all the circumstances and was a decision improperly made in administrative terms. His Honour decided that in the proceeding before him no ground had been demonstrated on which the power of judicial review may be exercised and the administrative decision set aside.  The applicant in the proceeding before his Honour was represented by counsel and the matter was argued over several days.

3. Coming now to the question of application for leave appeal which, as already stated, did not arise until more than two years after his Honour handed down his decision, the matters that we must consider are manifold, and are not constricted.  There are principles to be followed but they involve broad considerations.

4. First, there is the need for there to be finality in litigation so that parties can get on with their lives and their commercial affairs and know that they will not have to reserve funds, time or energy on further litigation. That is an important consideration. Second, regard is to be given to what the demands of justice require.  In some circumstances, it may be apparent that a just result will require action to be taken by a court to allow a proceeding to be continued, either by granting an extension of time to bring an application for leave or by granting leave to appeal.

5. As indicated to the applicant in the course of argument, there may be differences in emphasis where a point has been ventilated already in the primary hearing and where what is sought to be done by the appeal is to gain an opportunity to re-argue the point.  In the present case, we can assume that having been represented at the primary hearing, the question whether an appeal would be made from the decision of his Honour must have been considered after his Honour gave his decision. We can also assume that after that question was considered by the applicant a decision was made that an appeal would not be brought.  Whether that was done on the basis that the question would be revisited at a later date and further consideration given to it, or the decision that an appeal not be pursued altered by a change of mind, is irrelevant.

6. The principal question now is whether there has there been an explanation of the failure to take any step to seek extension of time during the period of two years after his Honour gave his decision.  In our view that default has not been satisfactorily explained. That does not mean in itself that an extension cannot be granted, but in the particular circumstances of this case we consider that the path that was followed, not to bring an appeal was an election to which the applicant should be bound and that we should not allow an extension of time to change that position and allow an appeal to be brought pursuant to leave in this matter.

7. The fact that there may be an arguable ground if the leave to appeal were granted is a factor that we have considered but it does not outweigh the consideration of all other matters that we have to take into account. For those reasons the Court has determined that the application for leave should be refused. Of course, costs will be limited to costs of the application for leave to appeal.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee, Marshall and Katz.

Associate:

Dated:             23 May 2001

Applicant appeared in person assisted by brother, J C Regan.
Counsel for the First Respondent:	A Markus
Solicitor for the First Respondent:	Australian Government Solicitor
Solicitor for the Second Respondent:	Australian Government Solicitor
Date of Hearing:	23 May 2001
Date of Judgment:	23 May 2001