Russell v Murrindindi Shire Council
[2018] VSC 662
•7 November 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 00005
| JOHN (JACK) RUSSELL | Plaintiff |
| v | |
| MURRINDINDI SHIRE COUNCIL | Defendant |
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JUDGE: | MOORE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 August 2018 Last written submissions filed 11 October 2018 |
DATE OF JUDGMENT: | 7 November 2018 |
CASE MAY BE CITED AS: | Russell v Murrindindi Shire Council |
MEDIUM NEUTRAL CITATION: | [2018] VSC 662 |
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PRACTICE AND PROCEDURE – Judicial Review – Extension of time – Whether ‘special circumstances’ existed – Local Council decisions – Delay of six months – No special circumstances – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | Mr M Gronow QC (written submissions only) | |
| For the Second Defendant | Mr I G Munt | Maddocks |
HIS HONOUR:
Introduction
The plaintiff, Mr Jack Russell, seeks judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) of a decision of the Murrindindi Shire Council (‘the Council’) made in April 2017 extending a previous ban preventing him from entering the Council’s buildings and facilities for a period of 12 months from 18 April 2017.
Subject to any order of the Court extending time, proceedings under Order 56 of the Rules are to be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.[1]
[1]Rule 56.02(1).
Mr Russell commenced this proceeding on 2 January 2018, some 6 months after the time prescribed by r 56.02(1). He seeks an order extending that time. Pursuant to r 56.02(3), the Court shall not extend time except in special circumstances.
For the reasons that follow, I have determined that there do not exist special circumstances in order for time to be extended pursuant to r 56.02(3).
Factual background
On 18 April 2016, the Council notified Mr Russell that, effective immediately, his licence to enter all Council buildings and facilities or attend any Council events or meetings was revoked for a period of 12 months, barring express invitation from the Council’s Chief Executive Officer, Ms Margaret Abbey (‘the ban’). Council imposed the ban because of what was said to be Mr Russell’s assault of a member of Council’s staff. The assault was said to have followed other unacceptable behaviour and inappropriate conduct by Mr Russell towards other Council staff.
On 13 April 2017, Ms Abbey notified Mr Russell of the Council’s decision to extend the ban for a further 12 month period, beginning on 18 April 2017 (‘the April 2017 decision’).
By April 2018, Mr Craig Lloyd had replaced Ms Abbey as Chief Executive Officer of the Council. On 20 April 2018, he notified Mr Russell of the Council’s decision to further extend the ban for three years, from 18 April 2018 to 18 April 2021 (‘the April 2018 decision’).
Procedural background
By Originating Motion filed on 2 January 2018, Mr Russell seeks judicial review of the April 2017 decision extending the ban for 12 months from 18 April 2017. Being some six months out of time, Mr Russell also seeks an extension of time in which to bring his application for judicial review. On 6 February 2018, Mr Russell filed an Amended Originating Motion.
On 22 May 2018, Ierodiaconou AsJ issued three interlocutory rulings in the proceeding. In Russell v Abbey,[2] her Honour upheld an application by the Council and Ms Abbey for an order removing Ms Abbey as a defendant in the proceeding. In Russell v Abbey (Ruling No 2),[3] her Honour dismissed an application by Mr Russell seeking orders for discovery and interrogatories directed to eight persons. In ex tempore reasons delivered on 22 May 2018, her Honour also gave her reasons for declining to make orders for the production of documents by the Council and Ms Abbey.
[2][2018] VSC 259.
[3][2018] VSC 260.
By notice of appeal dated 14 June 2018, Mr Russell seeks leave to appeal the above three interlocutory decisions.
On 2 July 2018, Mr Russell wrote to the Court seeking an adjournment of the proceeding to a date in 2019 such that it could be heard together with another proceeding currently before the Court in which he is the plaintiff.[4]
[4]Russell, John (Jack) v Eaton, Simon & Ors, (S CI 2017 03875).
On 26 July 2018, the above three interlocutory appeals were listed for hearing on 16 August 2018.
On 15 August 2018, the Court received by post a bundle of documents from Mr Russell. One of these, described as an Affidavit sworn by Mr Russell that day, was headed ‘Plaintiff Adjournment – Application’ and set out a ‘request that the proceeding be adjourned to a more suitable date.’
At the hearing on 16 August 2018, the parties agreed with the Court’s identification of the following four issues as arising for determination:
(a) Mr Russell’s application for adjournment;
(b) the hearing of Mr Russell’s notice of appeal from the interlocutory decisions of Ierodiaconou AsJ;
(c) the hearing of the application for an extension of time for Mr Russell to bring the application for judicial review; and
(d) the hearing of the application for judicial review itself.
The parties agreed that the Court should first deal with the question of whether time for the commencement of the proceeding should be extended. Mr Russell indicated that he was agreeable to the Court determining that question on the basis of written submissions if an adjournment was granted to allow him an opportunity to seek legal advice. The Council opposed the adjournment sought by Mr Russell.
I decided to adjourn the proceeding to enable Mr Russell to obtain legal assistance for the preparation of written submissions on the question of whether he should be granted an extension of time for the filing of his application for judicial review.
With the assistance of the Self-Represented Litigants Coordinator at the Supreme Court of Victoria, Mr Russell was able to obtain the pro bono assistance of Mr Michael Gronow QC through the Victorian Bar Duty Barristers’ Scheme. Submissions were duly filed by both parties.
Legal Principles
Order 56 of the Rules sets out the procedure for the commencement of judicial review proceedings in this Court. Rule 56.02 provides as follows:
(1) A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.
(2) Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.
(3) The Court shall not extend the time fixed by paragraph (1) except in special circumstances.
As stated by Habersberger J in Goodman v Victorian Civil and Administrative Tribunal,[5] ‘special circumstances’ in r 56.02(3) means ‘something that is not “general in character”, but something exceeding “that which is usual or common.”’[6] His Honour referred to the following statement by Toohey J in Re Beadle and Director-General of Social Security:
An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.[7]
[5][2011] VSC 35. See also Kocak v Wingfoot Australia Partners Pty Ltd [2011] VSC 285 [33].
[6][2011] VSC 35 [28] (omitting footnotes).
[7]Ibid [28], quoting Re Beadle and Director-General of Social Security (1984) 6 ALD 1, 3.
Although the phrase ‘special circumstances’ ‘is deliberately flexible and designed to encompass cases which might not easily be anticipated by more prescriptive words,’[8] the Rules require the Court to be objectively satisfied that special circumstances exist.[9] Whether special circumstances exist is a question of characterisation of a particular case and is to be determined by reference to the whole of the circumstances of the particular case.[10] The inquiry is not confined to the circumstances relating to the failure to commence a proceeding within the prescribed 60 day period.[11] Relevant factors include the period of the delay, the reason for the delay, whether the plaintiff has an arguable case, the justice to both parties, including the prejudice to them, and the public interest in the finality of litigation.[12] As stated by Cavanough J in Kocak v Wingfoot Australia Partners Pty Ltd:[13]
All relevant factors (positive and negative) need to be considered. It is conceivable that a single outstanding feature of a case may contribute enough to make the circumstances as a whole, on balance, special. However, the mere unusualness of a particular feature would not be relevant at all unless the feature tended to support an extension. On the other hand, it is not essential that there be some particular circumstance that is unusual. Circumstances can be combined. An unusually clear or heavy balance of favourable circumstances over unfavourable circumstances may be enough, even if none of the individual circumstances is uncommon or unusual in itself.
[8]Mann v Medical Practitioners Board [2002] VSC 256 [18].
[9]Ibid [19], approved by the Court of Appeal in Mann v Medical Practitioners Board [2004] VSCA 148.
[10]Mann v Medical Practitioners Board [2002] VSC 256 [19] approved by the Court of Appeal in Mann v Medical Practitioners Board [2004] VSCA 148 [57], [72].
[11]Madafferi v Chief Commissioner [2017] VSC 652 [40]; Lazarevic v Victoria Police [2014] VSC 497.
[12]Madafferi v Chief Commissioner [2017] VSC 652 [40]; Kocak v Wingfoot Australia Partners Pty Ltd [2011] VSC 285 [29]; Lazarevic v Victoria Police [2014] VSC 497 [36].
[13][2011] VSC 285 [36].
I have applied these principles in considering Mr Russell’s application for an extension of time.
Plaintiff’s submissions as to special circumstances
Mr Russell accepted that, because the ban the subject of the April 2017 decision has expired, the decision no longer operates and that accordingly his application to review that decision is futile.
Mr Russell submits, however, that he should be permitted to have judicial review of the April 2018 decision further extending the ban for three years and seeks leave to amend his Originating Motion to do so.[14] It was submitted that the Court had power to permit Mr Russell to rely upon matters that arose after the commencement of the proceeding.[15]
[14]The Amended Originating motion filed by Mr Russell dated 6 February 2018 did not seek to challenge the April 2018 decision.
[15]The Rules 2.01-2.04 and 36.01(1) and (2)(a) were submitted to be a source of power to permit Mr Russell to challenge the April 2018 decision.
The special circumstances relied on by Mr Russell to justify the grant of an extension of time were based in part on circumstances particular to him and in part on broader circumstances relating to the ban and the current proceedings.
As to the features personal to Mr Russell, emphasis was placed on the fact that he was elderly and a non-legally qualified litigant in person. It was contended that this meant that he may not be likely to be aware of time limits imposed by the Rules, may not understand the need to comply with them, and may experience general difficulty with the commencement of proceedings in this Court. Reliance was placed on authorities said to establish that special circumstances can include an inability to obtain legal advice due to the absence of legal aid, and the impecunious nature of the plaintiff and inaccurate legal advice
As to the broader circumstances relied on by Mr Russell to constitute special circumstances and why the Court should exercise its discretion to extend time, Mr Russell advanced the following points:
(a) While the delay of 6 months in commencing proceedings was substantial, it was not inordinately lengthy compared with some other cases.
(b) The absence of prejudice to the Council in permitting the extension of time.
(c) That his application for judicial review was at least arguable given:
(i) that the ban appeared to stem from one alleged incident in April 2016;
(ii) the absence of any particulars of further inappropriate behaviour by Mr Russell since 2016;
(iii) the Council’s reliance on Mr Russell’s ‘recognition of inappropriate behaviour’ by him, when he has at all times disagreed with the Council’s characterisation of his behaviour as inappropriate and does not agree that he has been other than respectful and civil to Council staff; and
(iv) Mr Russell’s advanced age (79 years) meant it less likely that he would be able to disrupt Council facilities and events if the ban was lifted.
Mr Russell also submitted that an extension of time would avoid a multiplicity of proceedings because, if an extension was refused, he was likely to bring similar proceedings to seek review of any future decisions to extend the ban. This submission was based on the proposition that Mr Russell was firmly committed to pursuing his application to review the Council’s decision to ban him from its buildings and facilities. It was also based on the assumption that it is likely that the ban will be further renewed when it expires in April 2021, after which time it would be open to Mr Russell to bring further judicial review proceedings against the Council in respect of the ban. In those circumstances, it was said to be more expedient and efficient for both the Court’s and the Council’s resources to permit Mr Russell to proceed with his present application for review, which course would avoid a multiplicity of further proceedings.
Mr Russell’s submissions in reply did not focus on the prospect of a further challenge being brought in April 2021 to any further extension by the Council of the ban at that time, but instead were principally directed at why he should now be given leave to amend his Originating Motion to challenge the April 2018 decision. In that regard, the following points were advanced:
(a) It was submitted that there was nothing inappropriate or unfair in expecting the Council to respond to a challenge to the April 2018 decision because it was a decision with exactly the same effect as the April 2017 decision and one presumably made for the same reasons.
(b) Having regard to the overarching obligations in s 7 of the Civil Procedure Act 2010, it was said to be inappropriate to force Mr Russell to commence a further proceeding challenging the April 2018 decision in circumstances where he would require an extension of time to commence such a proceeding and where the same issues as arise in the current proceeding would also arise for determination. Mr Russell would suffer prejudice due to the costs and trouble associated with the commencement of further proceedings and such a course would be wasteful and give rise to an unnecessary multiplicity of proceedings.
Mr Russell also submitted that the Council should have given him an opportunity to be heard on each decision to impose the ban. Further, it was submitted that, before it made the April 2017 and 2018 decisions, the Council should have, but did not take into account, Mr Russell’s status as a citizen, his advanced age, his previous good character and the unlikelihood of his causing further disruption on Council premises. It was also submitted that the Council should have provided evidence of what it said was Mr Russell’s escalating pattern of behaviour extending over many months.
Consideration
Having regard to all of the circumstances of the present case and assuming in Mr Russell’s favour that he has established an arguable case for judicial review, I am not satisfied that there exists any particular quality of unusualness in those circumstances which would enable them to be described as ‘special’ so as to warrant the grant of an extension of time.
As acknowledged by counsel for Mr Russell, the proceeding as currently formulated is futile because the effect of the decision sought to be reviewed is spent. This fundamentally undermines the attempt to characterise the circumstances pertaining to Mr Russell’s case as being in any way ‘special’.
I am unpersuaded by counsel’s attempt to address this difficulty by seeking leave to amend the Originating Motion so as to challenge the April 2018 decision. Even if the Court has power to amend the proceeding in this way, the fundamental difficulty with this argument is that it assumes that, absent amendment, further proceedings by Mr Russell challenging the April 2018 decision will inevitably or very likely follow. While Mr Russell may genuinely intend to initiate such proceedings, any such proceedings would also be significantly out of time. The temporal limitation imposed by r 56.02(1) means that Mr Russell cannot commence any such proceedings without the leave of the Court. The risk of a multiplicity of proceedings referred to by Mr Russell must be seen in this light. The attempt to establish the existence of special circumstances by referring to the prospect of further proceedings which themselves could only be commenced by the Court being satisfied of the existence of special circumstances does little to assist Mr Russell in obtaining an extension of time in respect of a proceeding which his counsel has accepted is futile.
Mr Russell’s reliance on the prospect of further proceedings being commenced after the expiry of the current ban in April 2021 also does not assist in establishing the existence of special circumstances. The position which might be adopted by Mr Russell and the Council some three years in the future is entirely speculative.
In relation to circumstances personal and specific to Mr Russell, I do not accept that the fact that he is elderly and not legally qualified, either alone or in combination with the other matters relied on by Mr Russell, are sufficient to establish the existence of special circumstances. How these features, which may be taken to be circumstances characteristic of a significant part of the population, constitute unusual, uncommon or exceptional circumstances was unexplained.
Further, the proposition that Mr Russell was elderly and not legally qualified was advanced only as a submission without any evidence as to any specific difficulties actually encountered by Mr Russell to explain the six-month delay in the commencement of the proceeding. There is no evidence before the Court to explain why Mr Russell was six months out of time in the commencement of the proceeding. As counsel for Mr Russell acknowledged, this was a substantial period of time. I also do not accept the submission that this period was nonetheless ‘not inordinately lengthy compared with some other cases.’ As counsel acknowledged, in the authorities to which this comparison was made, the Court did not extend time.
I reject the submission that an extension of time would not cause the Council any prejudice. Ms Abbey left the employment of the Council on 30 June 2018. It was also submitted that a witness to be called by the Council, Andrew Bond, has also left the Council. I therefore generally accept that obtaining instructions and leading evidence is likely to be more burdensome for the Council than it would have been if the proceeding had been commenced in a timely way.
In comparison, the rejection of Mr Russell’s application for an extension of time in respect of an application which is now futile, does not preclude him from seeking an extension of time to commence a fresh proceeding in respect of the April 2018 decision. Any difficulty or inconvenience which Mr Russell might thereby suffer would flow principally from his decision to issue such proceedings and from his delay in commencing the current proceeding.
Disposition
For the reasons outlined, there do not exist special circumstances in order for time to be extended pursuant to r 56.02(3) of the Rules. The Court will accordingly order that Mr Russell’s Originating Motion for judicial review dated 2 January 2018 be dismissed.
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