Sims E-Recycling Pty Ltd and Minister for Sustainability, Environment, Water, Population and Communities

[2012] AATA 50

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2012] AATA 50

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/4689

GENERAL ADMINISTRATIVE DIVISION		)
Re		SIMS E-RECYCLING PTY LTD

Applicant

And MINISTER FOR SUSTAINABILITY, ENVIRONMENT, WATER, POPULATION AND COMMUNITIES

Respondent

DECISION

Tribunal The Hon Brian Tamberlin QC, Deputy President

Date1 February 2012

PlaceSydney

Decision

(a)   It is decided that an extension of time be granted to 1 November 2011 for the Applicant to file its application for review; and

(b)   The application for joinder by CRT is dismissed for non-prosecution and non-attendance.

......................[sgd]...................

The Hon Brian Tamberlin QC
  Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time – whether it is reasonable in all the circumstances to grant the extension – explanation for delay – amount of delay – whether the application has possible merit – extension of time granted.

Administrative Appeals Tribunal Act 1975: s 29(7)

Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996

Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176

REASONS FOR DECISION

1 February 2012 The Hon Brian Tamberlin QC, Deputy President

1.By letter dated 29 August 2011 the Assistant Secretary of the Environment Protection branch of the Department of Sustainability, Environment, Water, Population and Communities informed Sims E-Recycling Pty Ltd (Sims) that he had decided to refuse to grant a special export permit under the Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996, to export up to 4,000 tonnes of waste glass from cathode ray tubes to a company in the Netherlands for recycling and reclamation of glass. 

2.The letter dated 29 August 2011 informed Sims that an application for independent review may be made to this Tribunal within 28 days of receipt of the Reasons for Decision. On 1 November 2011 Sims made an application for review to this Tribunal.

3.On the same day, Sims made an application for an extension of time for lodging an application for review.

4.On 21 November 2011 the Australian Government Solicitor (AGS), acting for the Minister, notified Sims that it was the view of the Minister that the application did not meet the criteria to be considered in exercising a discretion to grant an extension of time as set out in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176, and accordingly opposed the application for extension of time in reasons therefor.

5.One of the reasons given in the letter from the AGS was that another company, namely CRT Recycling Australia Pty Ltd (CRT), could be prejudiced by the decision to grant an extension of time, because a decision to set aside the reviewable decision would be adverse to the commercial interests of CRT by removing feedstock to its disposal facility in favour of export.

6.On 14 November 2011 the AGS wrote to CRT to notify it of the proceedings on behalf of the Respondent.

7.CRT made an application to be made a party to this proceeding and AGS notified Sims of this fact.

8.There were some communications between the Tribunal and CRT on 30 November 2011. CRT was notified that the application for extension of time would be heard on 14 December 2011 at 10.00 am.  The Minister was also notified of this hearing date. 

9.On 7 December 2011 the Tribunal notified CRT, the Minister and Sims that the hearing would consider both the extension of time application and the joinder application.

10.CRT made no submissions to the Tribunal.  A representative of CRT on the morning of the hearing said that CRT had received a copy of the Tribunal’s listing notice, but confirmed they would not attend the hearing. 

11.When the matter came on for hearing before the Tribunal there was no appearance from CRT, and the Tribunal noted the indication they would not be attending, although they had received a copy of the listing notice.

12.The Tribunal heard submissions from the parties in relation to the extension of time application and dismissed the application by CRT for joinder for non-prosecution and non-attendance. 

13.The question for consideration by the Tribunal is whether there should be an extension of time for Sims to lodge its application for review of the Minister’s decision with the Tribunal.

14.Ordinarily, an application for review of a decision must be lodged with the Tribunal within 28 days of the decision being received by the Applicant (per s 29 of the Administrative Appeals Tribunal Act). Under s 29(7) of the AAT Act, the Tribunal may extend the time for filing an application for review if “it is reasonable in all the circumstances to do so”.

15.The relevant principles for exercising the discretion to extend time were set out in the Hunter Valley Developments case referred to above by Wilcox J at 348 as follows:

(a)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 so to do. The "prescribed period" of 28 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.

(b)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.

(c)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.

(d)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.

(e)The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.

(f)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.

16.In regard to the considerations referred to by His Honour, the Tribunal has decided to grant an extension of time for the reasons set out below.

17.The application for review is only one month out of time and in the circumstances this is not a significant period.

18.Secondly, the Minister could not point to any significant prejudice that would be caused if the extension of time was granted.

19.Thirdly, evidence was adduced for Sims of the reasons for the delay, including the complexity of the considerations and the importance of the extension for Sims.  It was also evident that there had been internal arrangements put in place for transfer of responsibility in relation to the conduct of this matter, which satisfactorily explained to a considerable extent the cause of the delay. 

20.Fourthly, there is a significant public interest in allowing parties to ventilate genuine disputes, and refusal of an extension of time would effectively stop Sims from presenting its case.

21.Fifthly, there was no suggestion that Sim’s case did not have reasonable grounds for argument, although it was submitted it was a weak case.  It is not possible for the Tribunal at this stage to express any opinion in relation to the strength of the case, but its case does seem to be reasonably arguable. 

22.Sixthly, there is also an important question of principle involved as to the disposal of the particular type of waste, namely cathode tubes and other products, having regard to the provisions of international arrangements.

23.Having regard to all of the above considerations and balancing the submissions made and the evidence provided by the Applicant and the Respondent, the Tribunal considers that this is an appropriate case in which to grant an extension of time.

24.Accordingly, the decision of the Tribunal is:

(a)  that an extension of time be granted to 1 November  2011 for the Applicant to file its application for review; and

(b)  the application for joinder by CRT is dismissed for non-prosecution and non-attendance.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon Brian Tamberlin QC, Deputy President.

Signed: .....[sgd].........................................................................
             C.Taylor, Associate

Date of Hearings  14 December 2011
Date of Decision  1 February 2012
Appearance for the Applicant   Mr G Muir              
Solicitor for the Respondent     Mr J Davidson, Australian Government Solicitor