Seyfarth, E.D. v Luckman, A.B.

[1985] FCA 526

AUMINTSTRATIVE LAW - ]ud:cial review - appllcant out of time -

factors relevant to exerclsc of discretlon - no acceptable

explanation for delay	- alternative and more appropriate remedy
avallable.

-	Administrative Decisions (Judicial Review)	A& 1977, s.ll(l)(c)
Customs &CL 1901, s.20EA

EDNARL' IIARRELL SEYFARTFI v A . B . CUCKMAN (who is sued as a Collector

of Customs for the State of Vlctorla), WILLIAM HOGAN, and

TI-IE C O M M O N W E A L T ~ O F	AUSTRALIA
No. VG 214 of 1985
Woodward J.
Melbourne
4 October 1985

6

IN THE FEDERAL COURT or AUSTRALIA	1
)

VICTORIA DISTRICT REGISTB ) )

DIVISION	GENERAL	1
BETWEEN :

EDWARU DARRELL SEYFARTH Applicant

and

A . B . LUCKMAN (who 1 s s m a s a Collector

of Customs for the State of Vlctorla), WILLIAM HOGAN,

and THE COMMONWEALTH OF AUSTRALIA Respondents

MINUTES OF ORDER

COURT : Woodward J.

DATE : 4 October 1985

PLACE : Melbourne

THE COURT ORDERS THAT:

The appllcatlon be dismissed with costs.

(Settlement and entry of orders is dealt with by 0.36 of the

Federal Court Rules).

IX THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICX REGISTRY	) No. VG 214 of 1905
)
GENERAL lIIVISION	)

- EDWARD DARRELL SCYFARTH Applicant

and

A.B. CUCKMAN (who 1s- sued a s Collector

of Customs for the State of Vlctorla),XLLIAM FIOGAN,

and THE C3MMOKQEALTI-I Or' AUSTRALIA Respondents

COIJRT:	Woodward J.
DATE:	4 October 1985

-- PLACE : Melbourne

=-TEMPORE JUDGMENT

WOODWARD J.

In this matter I am called upon to exercise a discretion

as to whether or not leave should be granted to brlnq an

applicatlon for an order of review under the Wnistratlve

- Decisions (Judicial Review) Acf; 1977, which 1 s clearly out of

time, (see s.ll(l)(c)). I find that I am not pcrsuaded by the

argument for the applicant thar; I should exercise my dlscretlon In

his favour. I say that having considered the var~ous factors

which are conveniently set out In the decision of Wilcox J in

Ilunter Valley Developmcnto Pty Ltd v ThXMlnlster for Home Affairs

and Envlronmen_t_, (1984) 58 ALR 305, at 310-311.

I thmk that it is clearly lncumbent upon an applicant

In a case such as thls to make out a posltive and persuaslve case

for the exercise of the Court’s discretion In hls favour. That

being so, It 1s simply not good enough for a solicltor to aver on information and belief that delay 1 s due to the Inability of the applicant to obtain the necessary funds to enable hlm to commence

proceedmgs - wlthout any particularity as to what efforts were

being made or what funds were requlred. It 1 s not as though the

amount needed to commence proceedings, even In today’s financial

climate, is of a very hlgh order. I am told elsewhere in the

affldavlt that the applicant 1 s contemplating an early return to

the United Kingdom, which would tend to suggest that he has access

to some reasonable amount of funds.

The factor that welghs, however, most heavily wlth me m

the exercise of my discretlon is that the procedure laid down in

the Customs Act 1901, s.Z08A, f o r challenglng a decision such as the one made in the present case, is for actlon to be brought In the appropriate state court, which in thls case would appear to be

the County Court. All the material before me suggests that the

real Issues involved in this case are questions of fact whlch

would be appropriate for determination ~n the County Court, and

that broader l s w c s going to thc proprlety of decisions made by

admmlstratlve offlcers In the Commonwealth Fublic Service are not

at all obviously ralsed in these proceedings.

So, having regard to the fact that there is an

alternative remedy avarlable, that I t seems to me to be the more

approprlate remedy, glvcn the facts of the partlcular case, and

* .

4 , . - 3 -

that there has been no persuaslve materla1 put before me

indicating an acceptable explanation for the delay In bringing

proceedlngs In thls Court, I am not prepared to exercise a

discretlon in favour of the applicant.

I have noted the argument that the applicant wishes to

return to the United Kingdom and believes that he might get a

speedler hearing in thls Court than in the County Court. That

material also 1 s very sparse. I am not told when the applicant is

plannlng to return or how important it is to hlm that he does

return. I do not know how soon the case could be heard In the

County Court in the ordlnary colirse of events. But it seems to me

that, if there is a genuine case for an early hearing based on the

deslre of the applicant to leave the country, an application would

be entertalned in the County Court. On the other hand my

knowledge of the situation of -,he lists In th1.s Court suggests

that it would be well into next year before there could be any

hearing of a matter of this type in any event.

I should perhaps say that the explanation for the

fallure to bring this application at an earller time is also qulte

unsatisfactory. A reference to "an administrative oversight", with-

out Indicating the nature of the oversight o r how it came about or

whose oversight it was, hardly helps the Court to determine whether

that further delay ought to be excused or not. But that delay, I

think, is peripheral to the main issue here, because the applicant

was well out of time before the notice of motion was first

contemplated. For the reasons that I have given, it 1 s my view

that this notice of motlon should be dismissed with costs.

I hereby certlfy that the

three ( 3 ) preceding pages are a

true and accurate copy of che

Reasons for Judgment h e r e m of

The Hon Mr Justice Woodward

- = - C 7--- I C - -

Associate

Dated: 4 October 1985

Counsel for the Applicant : Mr T Murphy

Counsel for the Respondent : Mr G Moore

Solicitors for the Applicant : Harding Brereton

Solicitors for the Respondent : Australian Government Solicitor