Trade Practices Commission v Arnotts Ltd

[1989] FCA 283

GENERAL DISTRIBUTION NOTREQUIRED

JUDGMENT No. a83 Y...~FI,

IN THE FEDERAL COURT OF AUSTRALIA)

)

VICTORIA DISTRICT REGISTRY	)	No. VG 47 of 1989
)
GENERAL DIVISION	)

B E T W E E N :

Applicants

A N D :

R. RICHARDSON, M. PALHER, D. COX, AND THE

COMMONWEALTH	0	F
AUSTRALIA

Respondents

JUDGE MAKING ORDER: KEELY J.

DATE ORDER MADE:	6 JUNE, 1989
PLACE ORDER MADE:	MELBOURNE
MINUTES OF ORDER
THE COURT ORDERS THAT:

application be extended to 27 February, 1989.

1.      The tlme withln which the applicants may lodge the

The respondents costs of and occasioned by the

application be paid by the appl~cants.

(Note: Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules)

GENERAL DISTRIBUTION NOT REQUIRED

IN THE FEDERAL COURT OF AUSTRALIA)

1

VICTORIA DISTRICT REGISTRY	)	No. VG 47 of 1989
)
GENERAL DIVISION	)

B E T W E E N :

Applicants

A N D :

Respondents

6 JUNE. 1989 KEELY J.

REASONS FOR JUDGMENT

On 27 February 1989 the applicants lodged an

application ("the appllcatlon") under the Administrative
Decisions (Judicial Review) Act 1977 ("the Judicial Review

Act") for an order of review in respect of certaln decisions ("the decisions") made under S. 74A of the Quarantine Act 1908. Those decisions ordered "into quarantine [certain goods berng] . . . All vines (other than frult) " and in some cases added, after the word vines, the words "and vegetative materral"; as to the goods each decislon stated that the relevant applicant "appear[sl to be the owner, possessor or

custodian". Most of those dec~sions were made in March 1988

before the letter, dated 16 March 1988, from Mr. David Messenger, solicitor for the applicant S.J. Andriske, requesting written reasons for the declsions. That letter referred to four properties which appear to belong to the second, third, fourth and fifth applicants. Other decisions were made later in March, June, and October 1988; those .

decisions could not be the subject of the solicitor's

letter, dated 16 March 1988.

The appllcatlon, after setting out the substantive orders sought, namely, quashing and setting aside each decision, clalmed such other orders "including (so far as may be necessary) extension of the tlme for lodging this applicatlon". Pursuant to leave granted by Woodward J. at a directions hearing on 21 March 1989, the appllcants on 14 April 1989 filed the notlce of motlon the subject of this decision. It seeks an order that the time for lodging the applicatlon "be extended to 27th February 1989; or such other	date as may be necessary to valldate (~nsofar	as the same is
invalid) the appllcants' application herein".

I deal first wlth the question whether the letter from

the applicants' solicltor, dated 16 March 1988 ("the letter"), constituted a "request" for "a statement in writing setting out .. . the reasons for the decision" within the meaning of s. 13(1) of the Judicial Review Act. KC. Strahan, of Queen's Counsel, who appeared wlth Hr. M. Derham, of counsel, for the applicants, submitted that it was such a request and relied upon the following passage from the judgment of Woodward J. in Ansett Transport Industries (Operations) Pty. Ltd. v Wraith (1983) 48 ALR 500 at 507-8:-

"The arguments of counsel have left only one Einding to be made by this court - whether a notice was given by Ansett to the IAFC in accordance with S. 13(1) of the Judicial Review Act. I have reached the conclusion that such a notice was given.

In arriving at that conclusion, I begin

with the general policy of the Judicial Review Act, which clearly intends that persons aggrieved by administrative decisions which adversely affect them should have full opportunity to show, if they can, that such decisions, have been improperly reached. They can only do this if they know how the decisions were in fact reached.

The right to obtain information about decisions is given by S. 13(1) of the Act. It is to be noted that no form of request is prescribed. Nor does the section require that the request be stated as being made pursuant to the Judiclal Review Act. Persons making decisions to which that Act

obli ation to supply reasons when requeste	applies must be taken to know of their
They should not need to bt referred to the relevant leqlslatlon. or should a person with rights under the Judicial Review Act be denied those rights merely because he does not know of them, or only knows of them vaguely, and so makes a request in some infoimal-letter or other
communication which does not follow the
wording of S. 13(1).
Providing the request is withln time (28 days after receipt of the determination in
the present case - see S. 13(5)), is in writlng, comes from a person aggrieved by the decision, and amounts to a request for reasons for the decision reached, I believe it ought to be compl~ed wrth." (emphasis added)

In the present matter the solicitor's letter, although very brief, made the followrng request:-

"Please confirm in writlng your reasons for placing the vines growing on the aforesaid

prop~rties in quarantine."

In my opinion that request was, in the words in the reasons for judgment of Woodward J. quoted above, (1) "within time", ( 2 ) "in wrltlng", (3) "from [the solicitor of] a person

aggrieved" and (4) "a request for reasons for the declslon

reached".

I am not prepared to uphold the submissions by Mr. Whelan, of counsel, who appeared for the respondents, that (a) the formal request for reasons in December 1988 supports the view that the March 1988 letter was not a "request" and (b) the nature of the March 1988 letter was "not what one

would expect under S. 13(1)" of the Judlcial Review Act. As	to the latter, he drd not submlt that it was necessary that
the "request" expressly clte S. 13(1) of that Act but submitted that the purpose of the letter must be made clear. I had lnitial doubts in the matter but have come to the
conclusion that that letter was a "request" wlthin the
meaning of S. 13(1) of that Act. As the respondents have not furnished to the applicants a statement of reasons, the time within which an application may be filed has not commenced to run.
The letter of 18 March 1988 did not request reasons for the decisions in respect of the quarantine orders made in respect of goods on the properties of the first, sixth, seventh, eighth and ninth applicants. The application also . seeks a review of those decisions. Accordingly it is necessary to consider the submissions of the parties as to whether the court should, in its discretion, grant the extension of time sought by the motion.
Counsel for the applicants and the respondents have cited a number of decisions of the court as to applications for extensions of the time in which to file applications under the Judiclal Review Act. In Hunter Valley Developments Pty. Ltd. v Minister for Home Affalrs and Environment (1984)
58 ALR 305 Wilcox J. considered a number of those decisions
and said (at 310-312):  "Section 11 of the Adminrstrative Decisions (Judiclal Review) Act does not set out any

criteria by reference to whlch the court's declslon to extend time for an application for review under S. 5 is to be exercised. Already there have been a number of

decisions of judges of this court, all

sittlng at first instance, deallng with the

approach proper to be taken. They differ a little, both in language and in emphasis, but I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive mannet, the exercise of the court's discretion:-

(a) Although the section does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Speclal circumstances need not be shown, but the court will not grant the application unless positively satssfied that it is proper so to do. The "prescribed period" of.28 days is not to be ignored (~alkon v ~bokiginal Development ~ o m m i s s i o n i $ 2 ) 43 ALR 535 at 550). Indeed it is the prima facie rule that proceedings commenced outside that perlod will not -be entertained (Lucic v '~olan

(1982) 45 ALR 411 at 416). It m
pre-condition to the exerclse of discretion
in his favour that the applicant for
extension show an "acceptable explanation
of the delay" and that it is " f a ~ r and
eauitable in the circumstances" to extend
time (Duff v Freijah (1982) 43 ALR 479 at

485; Chaman Neaves J., 9

December , not reported, at p. 7).

(b) Action taken by the applicant, other than by maklng an application for revrew under the Act, is relevant to the consideration of the questlon whether an acceptable explanation for the delay has been furnished. A distinction 1s 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

ALR 283 at 287) and a case where the	Doyle v Chief of General' Staff (1982) 42 "rested on his rlqhts": per Fisher J. in
decision-maker was allowed to belleve that the matter was finally concluded. Compare
Do le, Chapman, ~alkon, and Douglas v ~ i l e n
h i n g J., 3 ~ p m 9 8 4 , not r e p o r t e m
p. 18 of the transcript) with ~ u c r c at pp. 414-5 and Hickey v Australian Telecommunlcations Commission (1983) 47ALR 517 at 515. The reasons for thls
distinction are not only the "need for
flnality in disputes" (see Lucic at p. 410) but also the "fading from memory" problem referred to in Wedeswelller v Cole (1983)
47 ALR 528.
(C) Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor milltatinu auainst the grant of an extension: s;e !Joyle at p. 287; Duff at pp. 484-5; Hicke at pp. 525-7
and ~ G w e i l l e r at pp. d.
(d) However, the mere absence of prejudice is not enough to lustify the grant of an extension: Dou las at p. 18; ~ u c i c 7at p. 416; Hickey 6 at p 2 3 . In thrs context, public consrderations often intrude (Lucic, Hicke ) . A delay whlch may result, i f e d a t i o n is successful, ln the unsettling of other people (Ralkon p. 550; Becerra v Fowell (unreported, orl ling J., 18 ~ e b r u a r m 3 ) at DD. 12-13 of the transcript)- or of estabiished practices (Dou las p. 19) is likely to prove fatal to
t A e app icatlon.
(e) The merits of the substantial application are properly to be taken rnto account in considering whether an extension of time should be granted: Lucic p. 417; Chapman p. 6.
(f) Considerations of falrness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's
discretion: Wedeswelller at pp. 534-5.
In considering the authorities it is, I believe, important to bear in mind the point made by Sheppard J. In Wedeswelller (at p. 531) relating to the diversity of
under the Act: ". . . there will be some decisions as to whlch revlew may be sought
cases which may be decided upon considerations whlch affect only the immediate partles. It wlll be appropriate to conslder whether the delay whlch has taken place has been satisfactorily explained, the prejudice whlch may be caused to an applicant by the refusal of an application, the preludice which may be suffered by the Government or a particular department if the application is granted and, generally, what the lustlce of the
case requires. In other cases wider considerations will be involved." He went on to mention the reference to publlc interest made by Fitzgerald J. in Lucic at p. 416.
It is in relation to the former category of cases, i.e. those "which affect only the immediate parties" that the approach adopted by Bray CJ. in Lovett v LeGall (1975) 10 SASR 479 at 4 8 V r e s p e m private litigation but adopted in this context in both Doyle at p. 287 and Duff at p. 485, is apposlte namely: " r t h e defendant has suffered no prejudice, as when he was well within the limitation perlod of the plaintiff's claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the court wlll not find it difficult to come to the conclusion that it is falr and equitable in the circumstances to grant extension."
By contrast, in cases involving publlc adminlstration, especially day-to-day matters such as personnel management, the public interest may well dictate refusal of an extension, even after only a short
delay. "

I respectfully adopt that statement and accept that they are the "principles to guide, not in any exhaustive manner, the exercise of the court's discretion" In considering the motion. As to paragraph (e), it is convenient to state at

this point that the respondents' counsel accepted, correctly

in my oplnion, that the applicants have an arguable case in

support of their application for review.

The applicants must show an "acceptable explanation of the delay" and they must persuade the court that it is "fair and equitable in the circumstances" to extend the time. Counsel for the parties directed my attention in considerable detail to those parts of the evidentiary material relied upon by them in this hearing. The relevant affidavits and exhibits and the submissrons of counsel for the parties have been considered and examined in greater detail, since reserving my decision, than was possible on the day of the hearing.

.

The respondentsf opposition to the motion is prrmarily based upon the delay by the applicants. They also contended that, even if an extensron of tlme were granted and even if the applicants were successful in the application for review, it was very likely that further quarantine orders, covering exactly the same material, would be made. On that basis it was submitted that there was a "lack of any commercial efficacy" in the application; rn my opinion that submrsslon cannot be upheld.

As to the delay by the applicants, Mr. Whelan

submitted that it was such as to suggest that they had

decided not to pursue any challenge to the decisions to

quarantrne the vlnes. On the evldence, I am not prepared to

draw such an inference. The evldence shows that the applicants were preoccupred with thelr negotiations with the officers of the Plant Quarantine and Inspectron Branch of the Department of Primary Industry, as to the export of the grapes from the vlnes. I accept the evidence of Mr. S.J. Andriske, in his affidavit sworn 14 April 1989 (paragraph 321, that the applicants considered that the export of the grapes was "a more pressing immediate problem than the 'quarantine orders1, which only related to the vines and not the grapes". In paragraph 34 of that affidavit, sworn on behalf of all the appllcants, he also stated that:

"rather than seeking immediate legal redreks by way of review, as the exhibited correspondence demonstrates, continuous and extensive negotiations, correspondence,

telephone communications and

representations took place between, in

particular, our solicitor Mr. David

Messenger, and officers of AQIS and also between myself and the Mlnlster Senator Cook. There has been no break in the efforts being made by the Applicants to take such steps as will resolve all the difficulties between themselves and AQIS. The "quarantine orders" in respect of the vines and the refusal to export the grapes are two aspects of the same problem."

I accept that evidence.

On the materlal before the court, and in the absence aspects of the same problem". As to that questron, Mr.	of any cross-examination of Mr. S.J. Andriske, I accept that	the appllcants consrdered that those two matters were "two
Whelan, in answer to questions from the court, accepted that (1) the questlon of the origin of the vlnes is relevant to the export control of grapes. Certain proceedings instituted by the applicants in the Admlnistratlve Appeals Tribunal
("the Tribunal"), in relatlon to orders made under powers conferred by the Export Control Act 1982 (relevant to the export of the applicants' grapes), "may not involve a detailed investigation of the origin of the plants [the
vines], but it may well do so . . . it is not inevitable,
although probably [it] is likely one way or another ...". (2) If the applicants are successful in the proceedings before the Tribunal, the decision, depending on the reasons for it, might affect the deciszons as to the quarantine of . the vines; he did not concede that it would affect them. I find that the applicants had not "rested on [their] rights" - per Fisher J. in Doyle v Chlef of General Staff (1982) 42 ALR 283 at 287, cited by Wllcox J. In Hunter Valley (supra at 311).
Mr. Cox, the thlrd named respondent, who swore an affidavit on behalf of all the respondents, referred to paragraph 34 of Mr. ~ndriske's affidavit, and said (paragraph 12):

"Although Mr. Messenger has Intermittently

basis of the quarantine orders the	requested further advlce in relatlon to the
respondents have not always been aware that they were matters of contention.
... Certainly the respondents have always
been aware that dispute exists between the applicants and the Commonwealth in relat~on to the applicants' activities in seeking to export grapes."

As to Mr. Cox's statement that "the respondents have not always been aware that they [the quarantine orders] were matters of contention", it will be noted that he conceded that the applicantsp solicitor "intermittently requested further advice in relat~on to the basis of the quarantine orders". It may be added that, elsewhere ln the same paragraph, he stated that between May and September 1988 "there was little contact in relation to the quarantine orders" i.e. he conceded that there was some (albeit "little") contact during the period strongly relied upon by the respondents in opposing the motion. On the material I . find that the applrcants did not act in such a manner as to lead the respondents to believe, on reasonable grounds, that they had decided not to pursue any challenge to the decisions to quarantine the vines.

Mr. Cox also deposed to the cost of varrous tests that have been carried out and stated (paragraph 11) that "I£ those orders are not valid and the vines have to be returned that work will have been wasted". As to the first matter, I am not prepared to attach any weight to waste in so far as it may stem from any decision of the court that the quarantine orders are invalld. As to the second, Mr. Strahan expressly

vines. On the evidence and on what Mr. Whelan has said as to	stated that the applicants do not seek the return of the
the proceedings before the Tribunal, I am satisfied that there wlll be no relevant prejudice to the respondents if the motion be granted

Mr. Whelan carefully analysed the evidence and submitted that there were five reasons why the court should not be satisfied that there was an acceptable explanation of the delay. Having considered each of those five matters in the light of the evidence, I find that the applicants have demonstrated an acceptable explanation for the delay in seeking reasons for those decisions, the subject of the application for review, whichSWere not referred to in the solicitor's letter of 16 March 1988. I also find - lest my . decision has wrongly held that that letter was a "request' - that there was an acceptable explanation of the delay in respect of the decisions which were referred to in that letter.

The respondents' counsel submitted that the applicants have not led any evidence of prejudice which they have suffered as a result of the quarantine orders. The applicantsr counsel submitted that it is sufficient that the orders have interfered with the applicants' proprietary rights and that those orders may be quashed or set aside, if the applicants' contentions are successful at the hearing of

submission on this aspect but it does not persuade me that I	the application. There 1s some force in the respondents'
should in my discretion, refuse the extension of time. A slmilar submission may be open to the respondents at the hearing of the application for review and at that time the court will be better informed than it is at this stage. The court's power to make orders of review is a discretionary one
under S. 16(1) of the Judiclal Revlew Act - (Lamb v - Moss
(1983) 49 ALR 533 at 549 per Bowen CJ., Sheppard and Fitzgerald JJ.). My rejection of any subrnisslon by the respondents in the present hearing will not prevent them from advancing submissions to the court hearrng the appllcation, directed to the exercise of the court's discretion. The lssue before me is whether the,appllcants should, in all the circumstances, be given an extension of time in order to . enable them to apply for a review of the orders.
In my opinlon, in all the circumstances disclosed by the material before the court, it is fair and equitable that the applicants' motion be granted by extending, to 27 February 1989, the tlme wlthrn which the appllcation may be lodged.

Order 62 Rule 23 of the Federal Court Rules provides

that:

orders, pay the costs of and occasioned by	time he shall, unless the Court otherwise "Where a party applles for an extenslon of
the appllcation or any order made on or in consequence of the appllcatlon."

That rule applles to an extenslon of tlme under the Rules but

I agree with the statement by Wilcox J. ln Hunter Valley (supra at 315), that the same principle should apply to an application for extension of the tzme limited by the Judicial Review Act. It may be added that the order as to costs made by Sheppard J. in Wedesweiller v Cole (1983) 47 ALR 528 was based upon the particular facts in that case. In my oplnion the applicants should pay the respondents' costs of and occasioned by this application.

.

I certify that this and the

preceding fourteen pages are a

true copy of the reasons for judgment of his Honour Mr. Justice Keely delivered on 6 June, 1989.

Associate:  & l ~ ) f ? f h ~

Date: 6 June, 1989

Dates of Hearing	: 25 May, 1989
Date of Judgment	: 6 June, 1989
Solicitors for applicants	: Mr. D. Messenger
Counsel for applicants	: Mr. Strahan Q.C. and Mr. M.

Derham

Solicitors for respondents : Australian Government

Solicitor

Counsel for applicants : Mr. S. P. Whelan