Sinclair, W. v Commonwealth of Australia

(LIMITED DISTRIBUTION)

IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	)
) VG NO. 358 OF 1986

DIVISION

GENERAL

)

Between: WILLIAM CHARLES GARFIELD

SINCLAIR

(Applicant)

(Respondents)

Judqe Makinq Order:	Ryan J.
Date of Order:	10 February 1987
Where Made:	Melbourne

MINUTE OF ORDER

THE COURT ORDERS THAT:

1. The applicant be allowed further time up to 13 October

1986 in which to lodge

an application for an order of

review of the decisions specified in

his

applicatlon

2 .

2. The costs of the parties

this

application

for

extenslon of time are to be costs	in the application
for review.

3. The exhibits be returned to the party by whom they were submitted.

m: Settlement and entry of

orders is dealt with in

Order

36 of the Federal Court

Rules.

IN THE FEDERAL COURT OF AUSTRALIA	I
)
VICTORIA DISTRICT REGISTZY	l
1 VG NO. 358 OF 1986
GENERAL DIVISION	)

Between: WILLIAM CHARLES GARFIELD

SINCLAIR

(Applicant)

U:	THE COPIMO?IbIEALTH UF
AUSTRALIA, THE COMFTROLLER -GENEFAL OF CUSTOMS, THE
COLLECTOR OF CUSTOMS
J OUEENSLANIj) , fWMELL ROGERS

(Respondents)

Coram: Ryan

Date: 10 February

1987

REASONS FOR JUDGMENT

The applicant has moved on notlce dated 9 October

1986

for an order extending the tlme wlthln whlch he

mlght make an

application under

the

Adminlatratlve

Declslons

(Judlclal

Review) Act

("the Act")

f o r renew

certaln decislons

allegedly made under the Customs Act

1301. The extension of

time is sought to

13 October 1986 whlch was the date on which

the applicant flled

his application under the Act.

In ljctaber 1'373 the

appllcant who xas then a resldent

of Thailand xas arrested by the Thal Follce and charged wlth

trafflckmg in narcotics.

was detalned in custody and

shortly afterwards his

son, Gregury Willlam Sinclair, began

to gather funds

In Australia for his father's defence. In

all, $145,580 in Australlan bank notes was collected, most

which belonged to the applicant. the rest being contributed

by his son and

daughter-in-law.

According to

affldavlt flled

in support of the

application for extension

of time, the bank notes were lodged

for safekeeplng

wlth a security guard from whom they were

seized

pursuant

to notices of Ee1xn-e issued

under

s.Z29A(Z)(a) of the Customs Act.

It was not possible

to communlcate wlth the appllcant

at the tune when the funds had been collected and seized.

However, hls wife lodged notices of ob]ection to two of the

notices of seizure which were related

tu amounts of

$2,800

and $22,840 (in addition to the sum of $145,580) which were respectlvely seized from the home of the applicant's

son, and

from a safety deposlt box operated by his

daughter-in-law,

and whlch were	subsequently	returned	by	the	Customs
authorlties.

3 .

The applicant successfully defended the prosecutlons

Thalland

and

h1s

release

from

custody

returned

Australla in

about Auqust 1332. He then wrote to the

Collector

Customs

cQueensland)

SEZklng

the

return

$145,530

being

the

balance

of the

miineys selzed,

and

lnstructed

Queensland

sollcltors

make

further

representations	to	that	effect.	The moneys	were	not
returned.

Early in 1383,

the

applicant

Instructed

Melbourne

solicitors to institute oraceedings against the respondents

for recovery of the balance whlch had not been returned. assets of the appllcant's son had been reallzed to defray the costs of the applicant's defence m Thalland, neither of them could bring proceedlngs against the respondent from hls own resources. Accordlngly, an appllcatlon for financlal

asslstance was made to the Legal Aid Commisslon

of Victoria

which stlpulated that before proceedlngs could be

mstltuted,

advlce on the prospects of success should be obtained from

counsel.

Two separate opinlons were obtalned, sach

of whlch

indicated

that

the

contemplated

proceedlngs

would

fall.

Nelther of those oplnlons

1s in evldence, and

it 1 s not clear

on what type

of proceedings counsel were asked to advise. In

view of those oplnions, the Legal Aid L'ommlsslon declined

t o

grant the appllcant further assistance and he and hls

son

were unable to pursue the proposed lrtigation.

The applicant

then sought to obtaln

rellef by havlng reprrsentatlons made,

and

questlons

asked In Parllament. by

the

late

Senator

Mlssen.

In response to one letter from Senator Mlssen, the

Mlnlster responslble for admrnlstratlon of the Customs

Act,

Senator Button, on 30 May 1385 wrote a letter whlch concluded wlth the Iollowlng paragraphs:-

"I would llke to restate my earlier suggestion to

you that I do not belleve that the Slnclalrs

are

pcecluded from seeklng

a declaratlon from

the

court of thelr rlghts to the

forfelted

money.

Such a course 1s not sub~ect

to any llmltation m

the manner of the rights

glven under the Customs

Act, and no walver

of any klnd is requlred from

me. . Such appllcations are dealt wlth accordinq

to the court's discretlon.

I understand the view that

you have put to me

concerning thls case, but say agaln that In vlew

the

posslbllity

of actlon

open to

the

Sinclalrs and the

lack of compelllng grounds to

vary	by Executive actlon the orlqlnal Customs

action I

am not dlsposed, in the lnterests

adminlstrative certalnty, to take such Executive

actlon.

I '

Despite that intimation the appllcant, his solicitor has deposed,

"continued to seek a polltical solutlon to the

problem until approximately

12 months ago when he

was referred to me and

I formed the opinion that

the actions of the Respondents was ultra

vires.

I subsequently briefed Counsel to advise and two

experlenced ~uniors took

the vlew that

the

Applicant had a cause

of actlon."

Thereupon, the applicant's

present

solicitors

(who were

Instructed at the end of 1985) requested the thlrd and fourth

respondents on 26 February 1386

for a statement pursuant to

the Act of the reasons for the selzure.

reply to that

request was recelved. but the thlrd respondent afforded the

applicant s zollcltors access to certaln documents pursuant

to the Frsedom of Lnformatlon Act 1'38:.

an 3 0 July 1936, the

applicant's sollcltors made a further request for

a statement

of reasons, to whlch the fourth respondent replied by letter

dated 1 August 1386 whlch included the fnllowlng sentence:

"As prevlously

advlsed

In this matter, the

undersigned is not a Customs Officer and is not

m possesslon of any files or documents relatlng

to the above matter.

The reference

prevlous

advlce

to the

appllcant's

sollcltors was apparently

to a letter dated

11 April 1986

from the Australian Customs

Service

the

appllcant's

solicitors

encloslng a statement

reasons.

It further

seems

that

the

letter

of 11 April 1'386 and

enclosed

statements were not recelved by the applicant's solicltors in

the ordinary course

of post, but coples

of them were provlded

Ly the Customs Servlce

In or about early August 1386.

In the meantime, counsel had been instructed to

draw an

appllcatlon under the Act. It became necessary

to revlse the

draft in light of the copy statement of reasons provided by

the Australian

Customs Service, and the revlsed draft was not

received from Counsel by the applicant's solicltors until	on
or about 23 September 1986.

By s.ll(l) of the Act:

(c)

shall be lodged with

a Reglstry

of the

Court and, in the case of an appllcatlon

In relation to

a decislon that has been

made and the terms

of xhich were recsrded

in writlna and set out in a document that was furnlshed CO the applicant. Including such a decislon that a person purported to

maks after the explratlon

of the perlod

a t h m which It

was required to be

made,

shall be so

lodged wlthln the prescrlbed

perlod or withln such further tlme

as the

iourt

(whether

before

or after the

explration of

the

prescribed

perlod)

allows.

The prescrlbed perlod for the purposes of s.ll(l)(c) 1s to be

ascertained by reference to

s.11(3) which provides:-

"The prescrlbed

perlod

for

the

purposes

paragraph (l)(c) is the period commenclng on

the

day on whlch the decision is made and ending on

the twenty-elghth day after

(a)

if the decision sets out the findings

material questlons of fact, refers to

the

evidence or other materlal on which

those

findings were based and

gives the reasons

for the decision

- the day

which a

document setting out the terms

the

declsion is furnlshed to the applicant;

(b)

in a case to which paragraph (a] does not apply -

(i)	lf a statement in writing settlng

out those findlngs,

referrlng

that evidence or other materlal and giving those reasons is furnished to

the

applicant

otherwise

than

pursuance of a

request

under

sub-section 13(1) not later than the

twenty-eighth day after

the day on

which a document

settlng out

the

tsrms of the

declslon 1 s furnished

to the appllcant - the day on	whlch
the statement 1s so Iurnlshed;

(11)

if the appllcant, In accordance wltk

sub-sectlon 13(1), requests

the

person who

made

the

declslon

furnish a statement as mentioned in that sub-sestlon - the day on which

the

statement

furnished,

the

applicant is notified in

accordance

wlth sub-sectlon 13(

3 ) of the

oprnion that the applicant was not

entitled to

make the request, the

Court

makes

an order

under

sub-sectlon 13(4A) declaring that

the applicant was not entltled to

make the request

or the applicant 1s

not if ied

in accordance with

sub-section 1 3 A ( 3 ) or

14(31

that the

statement will not

be furnished; or

(iii)

m any other case - the day on which

a document setting out the terms

the deClslGn

furnlshed

the

applicant.

In circumstances In which no time lmit 1s prescribed in one

or other of the ways set out In s.lli3), s.11(4) operates by

stipulating that:

"Where -

(a)

no period is prescribed for the making

applications for orders of review

relation to

a partlcular decislon; or

(bl	no period is prescribed for the making of
an application by a particular person for an order of review in relation to a particular decision,

the Court may

(c)	in a case to whlch paragraph (a) applies - refuse to entertain an application for an

order

revlew

In relatlon

the

declsion referred to in that paragraph; or

( d )

in a case to which paraqraph :b) applies - refuse to entertain an applicatlon by the

person referred to in that paragraph

for

order of review

relatlon to the

decislon 50 referred to,

the Court 1s of

the

oplnlon

that

the

appllcatlon was not made wlchln	a reasonable tlme
after the declsion was made."

It is clear from the terms of the

application, and it

was

confirmed by Mr.

Nash of

counsel for the applicant

the

course of argument, that the declsion whlch

it is sought to

renew, was that made

in about August

1982

to refuse the

applicant's request

for

the

return

him of

$145,580.

However, the evldence does not disclose whether that refusal

was recorded in writing and set out in a document that

was

furnished to the applicant,

as required by s.ll(l)

for one or

other

the

periods

prescrlbed

s.11(3)

commence

runnlng. Nevertheless, It was common

ground, as the matter

was argued, that the prescribed perlod had expired, and that

the appllcant could only maintain

his application

if the

Court,

In the exercise of

its discretion,

allowed

some

further tlme explrlng

on or after 13 October

1986.

I was referred to

passage from the ludgment

Sheppard J. In Wedeswelller v. Cole (19833 47 ALR 528 at

531

where hls Honour adverted to a number of decisions by other ludges of thls Court deallng with the conslderations to be

taken Into account

exerclsing the discretion to extend

9 .

tlme whlch

1 s conferred by

s.11 of the Act. Those

cases

included Dovle v. C h l e f

of General Staff (1332) 42 ALR

283,

Ralkon Aqrlcultural Co.

Ptv. Ltd. v. Aborlsinal Development

Commlsslon 11982) 4 3 ALR

535, Duff v. Freliah (1983) 43

ALR

479, Luclc v. Nolan (13833

45 ALR 411 and Becerra v.

Fowell

[unreported, 18 February 1983).

HLS Honour went on to say:

"I am mclined to

agree

with

Morllng

J. in

Becerra's Case that dlfferences are discernlble

m	these various declslons as to the emphasis

which should be glven various matters

In decidmg

whether or

not an

extenslon of

tlme should be

granted I n a partlcular

case.

But

I would

respectfully suggest that thls

IS not because of

any fundamental dlsagreement amongsr; ~udges as to the approach whlch should be taken, but more to

the need for each

~udge

to address hlmself to the

particular clrcumstances of the case before hlm. I do not wish to add to what has been sald except

to say that there

wlll be some cases

which may be

decided upon conslderatlons which affect only the

lmmediate

partles.

wlll

approprlate

consider whether the delay which has taken place

has been satlsfactorlly explained, the prejudlce

which may be caused

applicant

by the

refusal of an application, the prelud~ce which may be suffered by the Government or a particular

department

If the appllcatlon is granted

and,

generally, what the justice

of the case requlres.

In other

cases

wider

considerations

will

Involved.

thls respect I

refer to what was

said by Fitzgerald J.

In Lucic v. Nolan, supra,

at p.416.

The discretion 1s vested in the court

completely

unrestricted

terms

and

mdicatlon is given of the matter which the court

1s to consider.

The discretion 1 s therefore a

very wide one and

I would not wish to say more in

case

dolng

may

have

the

effect

circumscrlbing In another case what the facts of

that case requlre.

I agree, wlth respect, wlth

that analysls of earller examples

of the exerclse of thls

dlscretlon, and

wlth hls Honour's

general statement of the proper approach

to applications

thls klnd.

I f m d

nothing lnconslstent in that statement

wlth the identlflcatlon by Fltzgerald

in Luclc v.

Nolan

(supra) at 415 of some

of the consideratlons whch may be

taken

Into

account

In the

exerclse

of the discretion

conferred b:r

s . l l ( 3 ) .

Hls Honour there made the

followmg

observatlons about the pollcy dlscernlble from the provlslons

of the Act and the range

of matters whlch the Court may take

into account in decldlng whether to grant

an extenslon

tlme

"It seems broadly accurate to say that there

1s a

legislatlve intention that certam standards are to be observed in respect of such decisions and

actlons. However, that

not the only public

Interest to be served. Other matters

proper

publlc concern which

are readlly identifiable as

relevant to the revlew

of admlnlstratlve acts and

decisions

include

the

need

for

finality

disputes, the efficient use

of public

resources,

the approprlate allocation and expendlture

publrc funds, and also where what

1s in questlon

mvolves promotion

and

discipline

the

Australian

Publlc

Servlce,

orderly

the

admlnlstratlon of that vast body.

Further, the

Impact of an act or

decision 1s often

not

conflned

to a particular

lndlvidual

who

adversely affected and wlshes to challenge

it; a

contest for promotion

1s an obvious example.

The leglslatlon contalns varlous mechanisms

allow these dlfferent pollcy consideratlons to

balanced.

Thus, for example, one

of the features

of the Administrative Decislons

(Judicial Review)

Act is that it contains limitatlons

wlth respect

to the tlme for the commencement

of proceedlngs.

. Where speclfic periods are

fixed, they are quite

short. That

carries

obvlous

implicatlons.

However, the time limitations

are not absolute.

In this, as in other matters arising under the

Act, e . g . in respect

of the relief which may

granted

under

s.16,

the

court

given a

discretlon. None the less, It must, in my opinion, be accepted that it has deliberately been made the prima facle rule that proceedings

IL.

not commenced In tlme should not be entertalned.

In thls respect, there 1s an obvlous contrast

between the terms of

s.11(3)

whlch provldes a

pre-emptlve

fixed

perlod

sublect

dlscretionary power of extenslon, and provlzlons like that of s.ll(4) whlch do not fix any

partlcular perlod but refer merely to	what 1s in
the court's opinion 'reasonable'.

I do not thmk that the court, In exerclsing its

power to make exceptions

in approprlate cases,

should confine its attention to the consequences

to the applicant

a refusal to extend time.

Justice, as the ultlmate object to be obtalned by

the exercise of the

dlscretion, seems to

me to

require

that

regard

had

broader

conslderatlons than merely the interests of the appllcant. Further, whllst there wlll be some

matters

whlch

are

relevant

the

quesrion

whether tlme should be extended (In ordinary lltigation inter partes) whlch are also relevant

ln thls content, It

seems tcj me likely that the

overlap 1 s only

partlal

and

that

different

emphasls 1s appropriate to some

the common

factors.

It may be that

exceptlonal

circumstances need not always be

shown

before

time can be

extended.

Howevec, I consider that

an applicant for an extension of tlme

malntains

throughout the burden of showing why, In all

the

circumstances, the extenslon

time should

granted.

I do not think

that, given proof of

certain matters by an applicant, e.g. an explanation for his delay In maklng application, an evidentiary onus shifts to the respondents to

establish that

prejudice

will

result

the

extension 1s granted; nor, In my opinion, if the

delay is explained and there will be

no personal

prejudlce to the named respondents, should

extension always

granted.

All

else aside,

there will often be

no question of pre~udice

to a

respondent decision-maker.

It 1 s neither necessary nor desirable, if Indeed

it would be possible to enumerate the great variety of pusslbly material circumstances to be consldered on an applicatlon for an extension of

tune. Nor, in

my opinion, 1s ~t posslble to

identlfy particular clrcumstances or classes

circumstances

whlch

must

automatically

excluded

from

conslderation.

Each

Individual

case should be dealt

with mdlvldually, glving

due

weight

prior

decisions and

what

they

reveal

judlclal

attitudes:

cf.

s.ll(4)

and

( 5 ) . Whilst there are obvious reasons why

there

should be no attempt at a f u l l lnveatlgatlon

the merlts of

the applrcatlon

for revlew on an

applicatlon for an extenslon of tlme. I would not

exclude IrGm zonslderatlon In an approprlate case

some obvlous strength or ;lealiness in an

appllcant's c x z or

matters whlch mlqht lustlfy

the refusal of relief, If the court has a dlscretlon to do so where a ground for rellef 1 s

made out.

To slmilar

effect,

Lockhart

J. observed

Hickev

Australian Telecommunications Commlsslon

(1983) 47 ALR 517 at

523 :

"Applicatlons for

enlargement

of time to bring

appllcations under the Judlclal Review Act

are

not merely

mter partes adversary proceedlngs.

Questions of public interest are Involved. Delay

by an appllcant in brlnging his application 1 s

relevant. What welght the court should give to

mere delay unaccompanied by

pre~udlce,

If there

could be such

a case under the Judlclal Review

Act, is

entirely

a matter f o r the

court

determine

the

partlcular

case.

but

delay

unaccompanied by prejudlce 1 s not necessarlly to

be placed to one side as irrelevant ar as not

operatmg against the success of the appllcant's

case. Delay wlthout prejudlce to the defendant

in equity proceedings may not constitute laches

sufflclent to debar the

plaintiff from equitable

relief. but the Judicial Revlew Act is concerned

with public consideratlons

as well as private

grievances attributable to

declsions made under

Commonwealth enactments.

In	some cases delay

unaccompanied by prejudice

may be a telling

consideration agalnst the exerclse

of discretion

to enlarge tlme for brlnging	an appllcatlon under
the Judicial Revlew Act.

Although s.11 does not in terms place an onus on

an applicant seekmg an allowance for further time wlthln which to lodge an applicatlon for an

order of

review, it 1s nevertheless incumbent

upon him to satlsfy

the court that the extension

tune should be granted. It is not

for

the

decislon-maker to

establish that the applicant

does not have a case for

an extenslon of tlme.

The applicant seeks an indulgence. It is

for h l m

to prove that

entltled to it. But the

13.

court should not surround the exerclse of its

discretion wlth unnecessary constralnts such

as a

requirement that there be special clrcumstances

or considerations of that kind. The statute does

not require them. Nor should the courts. It is

best left to the good sense of the ludge

hearlny

each case to

determme whether, on the evidence

before him, the

court's discretion

should

exercised in favour of grantlng an enlargement of

time to brlng

an appllcatlon for

order of

review.

In the

present case, I conslder

that an adequate

explanation

has beer,

provided for the

most

algniflcant

periods of delay

whlch have occurred since about August

1982.

although the evidence relled

on as provlding that explanation

is not as full

it might have been.

I have also taken

account of the fact that the decision to refuse to repay the

forfeited moneys

the appllcant was not one which had

implications for the administration of the Customs Act

other respects, or

whlch purported to lay down any general

rule of departmental policy or practice. On the other hand, I have not disregarded the public interest In the attainment

of certamty, as

soon as

reasonably practicable, about the

dlsposition of moneys ilhich are contended to have passed into

the public revenue.

Because

the

absence

from

the

evidence

any

statement by the respondents of

reasons

for the refusal to

repay

the

moneys

claimed

the

appllcant,

I have not

attempted to evaluate

with

any precision the applicant's

prospects

success

on the

merits of his

application.

However, I have acted

on the view that the evidence

far

before the court ralses

a serlous question ta be trled.

have also been influenced

by the magnrtude of the financial

detrlment for the appllcant If he is permanently deprlved

the

sum

of $145.580 In question. Related

that

conslderatlon has been the apparent acceptance

on both sides

that no other legal remedy

1 s avallable to the applicant than

the renew of the respondents' decision

which 1s afforded by

the Act. Some

welght, albeit

small, also

attaches to the

appllcant's attempts to obtaln relief by way of minlsterial or executive action, and the lnvltatiun which those attempts

evoked to pursue

a legal remedy.

I have not overlooked the

magnitude of the delay which

has occurred in maklng this appllcation,

or what Mr. Kendall,

for the respondents, stigmatlzed

as the

"falrly leisurely

approach" adopted by the applicant and some

his legal

advlsers at those perlods since August 1982 when a

positlve

course of actlon lay

open. However, on balance, I consider

it appropriate to exercise the court's

discretion by granting

the extension of tune which has been sought. Accordingly,

propose to order that the appllcant be allowed further time

up to 13 October 1986 in which to lodge

an application for

order of revlew of the declsions specifled In

his applicatlon

lodged on that date and dated 3 October 1986.	Subject to any
submissions which counsel may deslre to make,	I shall order

15.

that

the

costs

of the

partles to

this

appllcatlon

for

extenslon of	tlme are to be costs	ln	the appllcatlon for
revlew.

I certify that thls and the

precedmg fourteen (14)

pages are a true copy of the

Reasons for Judgment hereln

of the Honourable

Mr.

Justlce Ryan.

Dated: 10 February 1987

[1987] FCA 36

10 Feb 1987