Taylor v Attorney-General for Victoria - [2023] VSC 358

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 01254

BETWEEN:

JULIAN TAYLOR	Plaintiff
v
THE HON. JACLYN SYMES, ATTORNEY-GENERAL FOR VICTORIA	Defendant

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 June 2023
DATE OF JUDGMENT:	27 June 2023
CASE MAY BE CITED AS:	Taylor v Attorney-General for Victoria
MEDIUM NEUTRAL CITATION:	[2023] VSC 358

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JUDICIAL REVIEW —Decision of Attorney-General for Victoria — Petition of Mercy — Judicial review application nine months out of time — Whether time should be extended — Request for adjournment — Adjournment request refused — Application for extension of time refused — Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
No appearance for the Plaintiff
For the Defendant	Mr L Brown Ms M Narayan	Victorian Government Solicitor

HIS HONOUR:

Introduction

Mr Taylor has filed an originating motion for judicial review seeking an order quashing the decision of the Attorney-General for Victoria (Attorney-General) refusing Mr Taylor’s petition of mercy. Mr Taylor’s originating motion alternatively seeks an order that the Attorney-General provide him with detailed reasons for refusing his petition.

An application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) must be commenced within 60 days after the date when grounds for the grant of relief or remedy claimed first arose. The Rules provide that the Court shall not extend the time for commencing a judicial review proceeding except in special circumstances.

The Attorney-General refused Mr Taylor’s petition on 30 April 2021. Mr Taylor filed his originating motion on 6 April 2022, more than nine months after the expiry of the 60 day time limit.

In the days immediately preceding the hearing, Mr Taylor emailed the Court requesting that the hearing be adjourned. The Attorney-General's solicitor did not agree to adjourn the hearing and so the Court informed the parties that Mr Taylor’s request for an adjournment would be determined at the commencement of the hearing.

Mr Taylor did not attend the hearing. At the commencement of the hearing I considered Mr Taylor’s adjournment request and refused to grant the adjournment. I delivered reasons orally on the day of the hearing, which I have set out below.

This judgment addresses whether the Court should extend the time for Mr Taylor to commence his application for judicial review.

For the reasons given below, I have decided to refuse Mr Taylor’s application for an extension of time.

Adjournment application

On 16 June 2023 at 8:57pm, Mr Taylor emailed the Court and the defendant requesting an adjournment for an unspecified period of time. Mr Taylor’s request was in the following terms:

As this hearing is one day before my daughter’s 18^th birthday I will not be emotionally able to attend. I find that, having wrongfully been denied any contact with my daughter for nearly eight years, and that the Attorney-General knows the unlawfulness of the Victorian Institute of Teaching decision yet seeks…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSC 358
Decision Date: 27 June 2023

CaseChat Overview and Summary

The case of Taylor v Attorney-General for Victoria involved a petition for judicial review concerning the Attorney-General's decision to decline a petition of mercy. The applicant, Taylor, sought judicial review nine months after the statutory time limit for such applications had expired. The application was filed in the Federal Court of Australia, which had jurisdiction to hear the matter under the Administrative Decisions (Judicial Review) Act 1977.

The primary legal issues before the court were whether the court should extend the time limit for filing the application and whether the application should be adjourned to allow for the submission of further evidence. The court had to determine if there were exceptional circumstances that warranted an extension of time or an adjournment, considering the statutory provisions and relevant case law on the matter.

In examining the application, the court found that Taylor had not provided a satisfactory explanation for the significant delay in filing the application. The court noted that while there are circumstances under which an extension of time might be granted, the applicant must demonstrate a compelling reason for the delay. The court also considered that an adjournment would not be appropriate as the delay had prejudiced the respondent and there was no indication that further evidence could change the outcome of the case. Consequently, the court refused to extend the time limit or grant an adjournment, and dismissed the application on the grounds of untimeliness and lack of exceptional circumstances.

The court's final orders were that the application for judicial review was dismissed, with no order as to costs. This decision underscores the importance of strict adherence to statutory time limits in judicial review applications and the stringent criteria required for extensions or adjournments.

Orders