Aboriginal Develop Commisson v Ralkon Agricultual Co Pty Ltd [1982] FCA 269

Federal Court of Australia|1981-03-23|Before: Fox J, Woodward J, Toohey J, Keely J

) ) SQUTH AUSTRALIAN DISTRICT REGISTRY } No. G25 of 1982 ) GENERAL DIVISION )

On appeal from a single Judge of the Federal Court of Australia

This is an appeal from a decision of his Honour Mr. Justice Keely in which he extended the time allowed ( for the making of an application under the Administrative

Act"), for an order of review, and dismissed an objection

The basis of the objection to competency was that the applicant was not a person who was aggrieved by the challenged decision within the meaning of ss.5 and 6 of the Judicial Review Act. Before us it was conceded by counsel for the appellant that the applicant was a "person aggrieved", and the objection to competency was as a consequence abandoned. Counsel at the same time wished to make clear to us his submission that the applicant was not in fact adversely affected by the decision because it did not impinge on any legitimate

This contention 1s, however, subsumed in the remaining principal ground of appeal, namely that his Honour wrongly exercised his discretion because the application could not succeed, and therefore, as counsel

put it, to extend time for making it was a futility.

The case concerns a decision by the Aboriginal Development Commission, established under the Aboriginal

Development Commission Act 1980, to grant a lease of

Jand to the Point McLeay Community Council. An offer to grant that lease was made on 23 March 1981 and this has been treated as the decision under challenge. In fact,

the Point McLeay Community Council for several months

actively opposed the grant to it of the lease and favoured

a grant to the present applicant, which now conducts, and at all material times had conducted, Farming operations on the subject land. The Point McLeay Community Council

(a) that, as matters stand, no lease of the land can consistently with the Act be granted to

(b) that the lease having been registered, the title of the Point McLeay Community Council

We have listened with attention to the careful arguments of counsel but are of the view that the matters raised do not constitute a basis for interfering with the exercise of his Honour's discretion. It is important to emphasise that the appeal, as it has developed, is against a decision of a procedural nature, where the Judge

An appellate court must be particularly cautious in upsetting such a decision. In fact, we find ourselves

in agreement with the conclusion reached by the learned

Judge in this case. The submission is in effect that the applicant cannot succeed in his application. To entertain such a submission, going to substantive matters in the course of an application to extend time, is plainly fraught with risk. Some arguments presented on behalf of the respondent may be affected by evidence, or even by change of circumstances. Questions of law are raised which are

This is not a case in which it is clear that the application must fail or that any orders made by the Court, if the application succceds, would necessarily be futile. In putting the matter this way we may of course be doing less than justice, perhaps much less than justice, to the

applicant's case, but we have not heard its counsel.

It was contended also that there had been undue delay in making the application for an extension of time, but in our view this contention does not succeed. The lease was not granted until July 1981 and a demand for possession of the land was not made until September 1981. His Honour, as it seems to us, had regard to these and all other relevant circumstances, and we can find no basis

for interfering with the exercise of his discretion.

We therefore are of the view that the appeal should be

dismissed, with costs, and that 1s the order we make.

four (4) pages are a true copy of the judgment of their Honours Mr. Justice Fox, Mr. Justice Woodward and Mr.

At a glance

Court

Decision date

Before

Source

Judgment (27 paragraphs)