Application under s.126 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) for an extension of time fixed for the commencement of a proceeding.

Mr Aldo Kersovanic appeared for the Responsible Authority.

Mr David Price of Australia Pacific Airports (Melbourne) Pty Ltd, assisted by Mr Bob Jones and Mr Trevor Hoskin, appeared for that company.

There was no appearance by or on behalf of the Permit Applicant A Gokler.

1. The Permit Applicant, Mr A Gokler, applied to the Responsible Authority on 31 July 1998 for a permit for a dual occupancy on the land.

2. The Responsible Authority referred the application to Australia Pacific Airports (Melbourne) Pty Ltd (the Company) on the basis of that company being a referral authority under the planning scheme. Apparently the company is a referral authority under neighbouring planning schemes and is proposed to be under the forthcoming Hume Planning Scheme to be based on the Victorian Planning Provisions. However, the company was not a referral authority in relation to Mr Gokler's application. This was the first of several mistakes made by the Responsible Authority.

3. The company objected to the proposal. It lodged its objection with the Responsible Authority on 4 December 1998 believing itself to be a referral authority. If it had been a referral authority such objection would have obliged the Responsible Authority to refuse the application. In that event Mr Gokler, if he wished to proceed with the proposal, would have been obliged to apply to this Tribunal for a review of the decision to refuse the application. The company would have been a party to such a review. No question would have arisen, under those circumstances, of the company having made an application for review out of time.

4. The Responsible Authority considered the application and the objections. It must, by this stage, have realised that the company was not a referral authority because it treated the objection as coming from an objector rather than a referral authority. This must be so because, instead of refusing the application (as it would have been obliged to do had the company been a referral authority) it decided to grant a permit and issue a Notice of Decision to Grant in accordance with the PE Act.

5. The Notice of Decision to Grant a Permit does not have an entry in the space "Date Issued:" but there is a notation reading "This is a copy of the Notice of Decision to Grant a Permit made by Council on 18 January 1999".

6. Thus the decision and Notice were made after considerable delays, almost six months after the permit application was lodged. It appears that the Responsible Authority and the Permit Applicant were content to allow a considerable amount of time to drift by. On the face of it the Permit Applicant could have appealed against the Responsible Authority's failure to grant a permit after 60 days from the lodgement of the application. Mr Kersovanic (who appeared for the Responsible Authority) sought to explain some of this delay by saying that there had been a request from the Responsible Authority to the Permit Applicant for further information in relation to the application. When such a request is made time against the 60 days limit just mentioned ceases to run until the further information is provided. Mr Kersovanic was vague as to how much time passed during the suspension occasioned by the request for further information. Nevertheless, there must have been considerable delays, either in providing the information or otherwise, to account for the passing of six months. I note this delay as it appears to me to reflect, to some extent, the lack of urgency in relation to this matter displayed by both the Permit Applicant and the Responsible Authority. This may be relevant in relation to an exercise of discretion or assessing prejudice that might be occasioned by granting the company an extensions of time in which to commence review proceedings.

7. The Responsible Authority was obliged to give a Notice of Decision to Grant a Permit. It sent a copy of the Notice to the company with a covering letter signed by Mr Kersovanic dated 19 January 1999. Unfortunately this covering letter contained a heading which was a second error by the Responsible Authority. It read:-

"RE: SUBDIVISION - TOWN PLANNING PERMIT APPLICATION NO. 5054 - 20 BROAD STREET, SUNBURY."

8. This was the wrong application number. It related to a subdivision rather than a dual occupancy and to a different address. This caused some confusion at the company's office. It must be remembered that, at this stage, the company still believed itself to be a referral authority in relation to Mr Gokler's application. There is a hand-written note on the company's copy of this letter which reads:-

9. There is a further hand-written note, in another hand, on the company's copy of the letter which reads:-

"Confirmed with Aldo K that letter relates to 6 Border Place."

This notation is initialled "JW" and dated 27/1/99.

10. The company had 21 days from the giving of notice in which to lodge its application for review. Approximately a third of that time was lost to it while it clarified the confusion made by the second error of the Responsible Authority before it realised the true situation. The true situation includes that it was not a referral authority in relation to the present case, and that it would need to apply to this Tribunal for a review if it wished to persist with its objection to the proposal.

11. The company then sought information from the Responsible Authority. It asked for a copy of the officer's report to the Council in relation to the permit application. This report was supplied to the company on the 5 February 1999. The company then arranged a meeting with officers of the Responsible Authority. Such a meeting took place on the 10 February 1999. Mr Kersovanic was not present at that meeting. There was a discussion as to how it had come about that the refusal to grant a permit, anticipated by the company, had not eventuated. The officers explained that the Council as Responsible Authority had considered the company's objection and thought it to be without merit. It is implicit in this that the Responsible Authority was, by that stage, treating the company as an objector rather than a referral authority.

12. It was then, as a result of the meeting, that the company realised it would have to prepare and lodge with the Tribunal an application for review of the decision of the Responsible Authority to grant a permit. It may have been wiser for the company, as a precaution, to have lodged such an application as soon as it realised that the Notice of Decision in fact related to this case. However, it chose to find out more of what had happened and why, before determining that it needed to make application for such a review.

13. Apparently some anxiety was felt in relation to the time within which such an application was to be lodged. The evidence before me is that this was discussed with an officer of the Responsible Authority who lulled the company's anxiety by stating that the Responsible Authority had power to extend the 21 day time limit. The company believed this representation. However, it was incorrect.

14. Nevertheless, the company now acted promptly and lodged its application for review with the Tribunal on Friday 12 February 1999. That was on the second day after the meeting with officers of the Responsible Authority.

15. The application for review, entitled "Notice of Appeal" (as such documents were termed prior to the 1 July 1998) is stamped as having been received by the Tribunal on the 12 February 1999. There is a further stamp on the document indicating that the relevant fee of $170.00 was paid on the 15 February 1999 when receipt No. 6319 was issued. It might appear from this that the things required in relation to the lodging of the application for review were not complete until the fee was paid on Monday 15 February 1999.

16. However, I have further evidence as to this. Mr Trevor Hosken of the company and who was present at the hearing before me, actually lodged the document, together with a cheque for the fee, late on Friday 12 February 1999. He asked for a receipt. He did not obtain the receipt. I accept his evidence and it is borne out by the receipt stamp of the 12 February 1999 on the Notice of Appeal document. Furthermore, it was lodged with and stapled to a covering letter signed by Mr Hosken and dated 12 February 1999. It appears from the documents on the Tribunal file that four pages were in fact stapled together namely the covering letter, the "Notice of Appeal", an attached page setting out grounds of appeal and a creditor remittance notice of the company dated 12 February 1999 for "appeal fee". It records "the due amount" as $170.00 and a note at the foot says "PLEASE DETACH BEFORE BANKING". The perforation below this note indicates that something has been torn off. It is obvious that it was a cheque for $170.00 payable to the Tribunal. I therefore conclude that the "Notice of Appeal" document and a cheque for the fee were in the hands of an officer of the Tribunal on Friday 12 February 1999 late in the afternoon when it was inconvenient for the new application to be registered. I also accept that the registration of the application was then carried out on the next day of business namely the following Monday 15 February 1999 and that the stamp indicating receipt of the fee was only applied on that day at the time of registration.

Was the Application for Review lodged out of time?

17. It then becomes relevant to ascertain whether lodgement on Friday 12 February 1999 was out of time. As previously mentioned, the company had 21 days from when it received the Notice of Decision. The Notice of Decision was sent out by mail. The date of receipt, in the absence of other evidence, is normally assessed by allowing say two days for delivery by mail and counting 21 days thereafter.

18. The Tribunal, on receipt of an application for review like this one, inquires of the Responsible Authority as to the date on which the Notice of Decision was issued and a date upon which it was posted. The written advice received in relation to this case is that the Notice was issued on the 19 January and posted on the 22 January 1999. On that basis lodgement on the 12, or even the 15 February 1999, was within time. There is, in fact, a notation on the Tribunal's office use section of this document which reads "CLOSE : 17.2.99".

19. At this stage all appeared to be well, at least on the surface of the documents on the Tribunal's file and the case was set upon the usual course to bring it towards a hearing.

20. However, on the 16 February 1999 Mr Kersovanic faxed the Tribunal to advise of yet another administrative muddle by the Responsible Authority in relation to this case. His faxed message reads:-

"Please be advised that Council sent the NOD out to the applicant and objector on the 19 January, 1999, rather than the 22 January, 1999 as stated in Council's Decision to Grant Enquiries form.

Please note the date stamp indicates that the letters were received by the Melbourne Mail Centre on the 20/1/99 rather than after the 22/1/99. A letter was returned to Council as the letter was sent to the applicant at 29 Stringybark Place, rather than the correct address of 20 Stringybark Place. The notice was resent on the 25/1/99 to the correct address.

Please note that the letters were sent out on the 19.1.99 as confirmed on the date stamp on the envelope that I have attached.

21. A copy of an envelope cover was also faxed, although I cannot discern on it the date stamp of the 19 January referred in the faxed message. I can see an indication of the postage having been paid at 8.34pm on the 20 January 1999. That indicates, provided the envelope relates to this case, that it was posted before the 22 January 1999. Mr Kersovanic's fax of the 16 February 1999 in fact reveals two further errors by the Responsible Authority. The first is misinforming the Tribunal as to the date of posting and the second is that it sent the Notice of Decision to the Permit Applicant, Mr Gokler, at an incorrect address. It also indicates that, at that stage, Mr Gokler had no occasion to feel prejudiced or dissatisfied in relation to an objector's application for review lodged on the 12 or 15 February 1999. The correctly addressed copy of the notice was only posted to him on the 25 January and the presumption would be that the copies mailed to the objectors would have been posted at the same time. The 15 February being well within time on that basis, it is hardly surprising that no complaint was raised by him when he received notification of the company's application for review in a letter from the Tribunal dated 15 February.

22. On the basis of all this I would have some doubts as to when the notice to the company really was posted or delivered. The Responsible Authority was not able to produce any letter-book or posting record or other evidence bearing on this point. However, Mr Price and the other officers of the company at the hearing did not seek to take advantage of this uncertainty. They honestly and fairly admitted, and produced evidence to support their admission, that they received the documents on the 21 January 1999. The evidence is the company's copy of the covering letter of the 19 January 1999 with the incorrect reference and address referred to earlier. It bears a date stamp for receipt of the 21 January and two hand-written notations each bearing that date. I therefore conclude that the covering letter and enclosed notice were in fact received by the company on Thursday 21 January 1999. Counting from the next day the 21st day falls on Thursday 11 February 1999, one day short of the day on which the application for review was lodged. If the time limit had specified 21 "clear" days, lodgement would have been in time.

23. I therefore, and for the above reasons, reject the submission made on behalf of the Responsible Authority to the effect that lodgement was five days out of time. It was out of time, but by only one day.

24. In all the circumstances of this case one might have expected the Responsible Authority to have come to the hearing with an apology and a consent to the extension of time. Leaving aside apologies, no such consent was forthcoming. It was said that the Responsible Authority could not consent because a third party was involved. The third party referred to was the Permit Applicant Mr Gokler.

Responsible Authority's Refusal to Consent to Extension of Time.

25. This reason for refusing consent is paternalistic nonsense. Mr Gokler can be allowed to look after his own affairs and his own interests. He was given notice of the hearing and could have attended to oppose the company's application for an extension of time if he had wished to do so. I do not see why the Responsible Authority should not mind its own business, and leave Mr Gokler to mind his.

26. So far as the Responsible Authority is concerned, I asked Mr Kersovanic whether the Responsible Authority would suffer any prejudice if time was extended. Not surprisingly he answered "No".

27. Furthermore, I cannot see on the basis of the evidence and submissions before me that Mr Gokler would suffer any relevant prejudice of any significance. I think any prejudice here suffered has rather resulted from administrative mistakes by the Responsible Authority and its unreasonable refusal to consent.

28. I think the case in favour of granting an extension of time to the company is a very strong one. Its delay in lodging its application was a very short one, one day only, and it has given a good account of how even that short delay occurred. Its behaviour has been reasonable and its oversight reasonably understandable. It has been notably fair and honest in putting forward all relevant evidence in relation to the circumstances of the case, even where it might have benefited by being less forthcoming. Its concerns are raised not only in its own interest but also in the public interest. The failure by one day was largely occasioned by the Responsible Authority. Indeed, I do not believe that the company would have been out of time at all but for the administrative mistakes of the Responsible Authority. Furthermore the other party is not shown to suffer any relevant material prejudice by the grant of the extension sought. I bear in mind that the power to grant such extensions is granted and intended to be used to enable justice to be done and to prevent justice being denied by minor technical failures that do not occasion harm and which might otherwise cause injustice by unreasonably excluding someone who ought to have the opportunity of a review that the legislation intends to afford. Really, its hard to think of a stronger case. On the merits, I have no doubt that the extension should be granted.

29. The only reason for hesitating further in determining this case is the suggestion in a recent decision of the Tribunal that the Tribunal might lack power under s.126 VCAT Act, in spite of its terms, to extend the time for commencement of the proceedings. The case concerned is Russell & Ors v Banyule CC & Petridis Cornetta Architects (unreported, No. 1998/101711). The Tribunal's file in relation to that case was before me during the hearing of this present matter.

30. The circumstances of that case are not so different from those of the present case. The evidence indicated that the responsible authority in that case had issued its Notice of Decision and posted it on the 30 November 1998. Mr James Russell decided to apply for a review of the Responsible Authority's decision, which had been to grant a permit. His application for a review, headed "NOTICE OF APPEAL" was lodged with the Tribunal with a covering letter dated Friday 18 December 1998. The application purported to be on behalf of Mr Russell and others. Also lodged with the covering letter and the application were several pages of names, addresses and signatures of those others.

31. The evidence did not make it perfectly clear as to a day on which these documents were received by the Tribunal but it must have been on or before the 21 December 1998 because the Registrar wrote to Mr Russell on that day stating that a party wishing to lodge an application must pay the appropriate fee at the time of lodging the application. The letter went on to say that if he wished to continue with the matter he should pay $170.00 without delay. It said that the fee was not refundable and that it was advisable to ensure "that you lodge your application within the prescribed time". It also said:-

"If you are in receipt of a Social Security pension such as a rehabilitation allowance, sheltered employment allowance, supporting parent's benefit, sickness benefits, a pension under the Veterans' Entitlement Act 1986 or you are subject to a declaration or are a disadvantaged person under the Health Insurance Act 1973, you may be exempt from having to pay the fee.

Proof, such as a photocopy of your pension card, must be supplied to the Registrar if you claim such an exemption."

32. A cheque for the fee of $170.00 was paid on the 24 December 1998 and a stamp recording the receipt and bearing that date gave evidence of this.

33. On the 7 January 1999 a letter was written from the Registrar's office to Mr Russell stating that some of the "others" had not been objectors and therefore had no right to a review before the Tribunal. The letter went on to say that s.82B PE Act provides that a person (other than an objector) affected by the decision could apply for leave to lodge an application for review. It went on to say that if it was intended to make such an application the Responsible Authority and the Permit Applicant should be advised and that it would be necessary for the Tribunal to conduct a directions hearing unless the Applicant for the permit consented to granting leave. The letter also said:-

"I further advise that your application has been lodged outside the time permitted. If you wish to continue with your Application for Review, you must also make application for an extension of time and seek consent for the extension of time from both the Responsible Authority and the Permit Applicant."

34. Such consent was refused by the Permit Applicant. Subsequently a time was appointed for the hearing of an application by Mr Russell to extend time and also for leave under s.82B for those "others" who had not been objectors.

35. The hearing was conducted on the 17 February 1999. The Permit Applicant was represented by Mr G Testro, a solicitor experienced in planning matters.

36. Mr Testro contended that the application for review was commenced three days out of time. That appears to have been accepted by the member hearing the application although the Tribunal staff had recorded the closure date as the 23 December 1998. The difference appears to be that Mr Testro started counting the 21 day time limit from the 1 December, the day after the issue and posting of the Notice of Decision by the Responsible Authority. He thus concluded that the last day for lodgement was the 21 December. Of course the documents were lodged by that date, but the fee was not paid until three days later on the 24 December 1998.

37. In doing this Mr Testro made no allowance for carriage of the notice through the post. The regulation which prescribes this time is Regulation 6 of the Administrative Appeals Tribunal (Planning Appeals) Regulations 1997. It reads:-

"16.(1) An objector may appeal under section 82(1) of the Act by lodging a notice of appeal with the Registrar within 21 days after the Responsible Authority gave notice to the objector under section 64 of the Act."

38. According to this regulation it is not within 21 days of the issue of the notice, or even its posting, but within 21 days after the Responsible Authority "gave notice to the objector". I don't think the objector can be said to have been given notice when, unbeknown to the objector the notice document has been issued and posted but when there has been no chance of the document reaching the objector and, in fact, giving the objector "notice". The calculation of the Tribunal staff has allowed two days for carriage of the notice through the post. On that basis the closing date of 23 of December 1998 was arrived at. Nevertheless, that is one day short of the date on which the fee was paid, although it was clearly after the date upon which the other documents were lodged with the Tribunal.

39. Oddly the reasons given by the Tribunal in the Russell case include the following:-

"It appears that Mr Russell produced his own pension card and paid a fee of a (sic) $170.00) on behalf of the other persons seeking to make an application to review the decision. The fee was received by the Tribunal on 24 December 1998."

40. It appears from this that Mr Russell may have had no occasion to pay a fee so far as his own appeal was concerned on the basis that he was exempt from paying it. The production of his pension card is merely evidence of his exemption. On that basis it might be argued that his own appeal, at least, was validly commenced within time on or before the 21 December 1998, even if evidence of his being exempt from paying the fee was only produced at a later stage.

"During the course of the hearing Mr Russell indicated that he was abandoning the application for extension of time on behalf of other persons who objected and also was abandoning the application for leave to appeal under S.82B of the Planning and Environment Act 1997 so that the only issue before the Tribunal is whether or not time should be extended to enable Mr Russell's own application to be filed."

Does Section 126(4) Prevent Extension of Time to Apply for a Review?

42. The case proceeded on the basis that an extension was necessary. The Tribunal went on to say:-

"In view of the fact that the permit application was originally lodged on or before the 21 December 1998 even though it had been lodged without the appropriate fee or production of a pension card the Tribunal may have been minded to grant the extension of time. However the provisions of the Victorian Civil and Administrative Tribunal Act which came into operation on 1 July 1998 seem to preclude the exercise of such discretion having regard to the fact that this Tribunal has no power in the circumstances of this case to remedy any prejudice or detriment to the permit application `by an appropriate order for costs or damages."

43. This was a reference to part of subsection (4) of s.126 VCAT Act. Subsections (1) and (4) of s.126 read:-

"126. "Extension or abridgement of time and waiver of compliance

(1) The Tribunal, on application of any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.

(4) The Tribunal may not extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages."

44. The Tribunal, in fact, has fairly wide powers in relation to the making of orders for costs. As to damages, at the foot of page 3, the Tribunal said:-

"It could be argued that the words "appropriate order" could be an order made by one or other of the courts. However having regard to the context of the wording of the section the Tribunal is of the view that the words "appropriate" in this context refer to an order of this Tribunal. As this Tribunal has no power to make such an order then it is not appropriate for it to extend the time fixed for the lodging of an application for review."

45. The reasons then go on to observe that s.126(4) appears to be in identical terms to s.99(3) of the Domestic Building Contracts and Tribunal Act 1995 (now repealed) and its prohibition was not contained in s.31(2) of the Administrative Appeals Tribunal Act 1984 (AAT Act). The Administrative Appeals Tribunal (AAT) was the predecessor of this Tribunal as the planning tribunal. Section 31(2) of the AAT Act gave it power to extend time for making an application for review. Section 31 AAT Act did contain some restrictions on that power, so far as planning matters were concerned, see s.31(4A) (now found in Clause 65 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), but nothing like subsection (4) of s.126.

46. The Tribunal then moved on to its conclusion on page 4 of its reasons in the following terms:-

"The former Domestic Building Tribunal under its legislation had wide powers to award damages which are not given to this Tribunal under the provisions of the Planning and Environment Act 1987 and the inclusion of this new provision in the VCAT Act seems to indicate that in applications for review before the Planning List of this Tribunal that (sic) applications for extension of time in the circumstances of this case cannot be granted as the Tribunal has no power to make `an appropriate order for costs or damages' ".

47. However, the crucial point is not whether there is a power to make an appropriate order for costs or damages, but rather any extension "would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages".

48. There is a prior question as to whether there is any prejudice or detriment, before the question of remedying it arises. I will discuss this matter shortly.

49. Before doing so I note that provisions like s.126(4) often refer to other possible means of ensuring justice, apart from orders for costs or damages. I have in mind such matters as giving notice, granting adjournments and the like. Although there is no mention of such things in s.126(4), they are provided for in s.130 VCAT Act. Sub-section 1 thereof says that a power of the Tribunal to make an order or other decision includes a power to make the order or decision subject to any conditions or further orders that the Tribunal thinks fit. Sub-section 2 goes on to say that conditions or further orders may include an adjournment of the proceeding; an order for costs; a condition or order that a person give notice of the proceedings, order or decision to any specified person; a condition or order that a person give an undertaking to the Tribunal and a condition or order necessary or desirable to give effect to an order or other decision.

50. However, I notice that this reference to "an undertaking" makes no mention of damages. I think a general power in relation to undertakings in a context like s.130 probably does include undertakings as to damages. Section 130 may provide means, in some cases, of avoiding prejudice that would otherwise be suffered.

51. I assume that s.126(4) is intended to avoid injustice to someone who might be prejudiced or suffer detriment by an extension of time to commence proceedings. It seems to me that it would be an unduly restrictive interpretation to say that any such prejudice or detriment must be remedied by an appropriate order for costs or damages, to the exclusion of such conditions or further orders as might be imposed under s.130. If, for example, the suggested prejudice or detriment could be removed by an adjournment or an undertaking, there would be no occasion to remedy it again with an appropriate order for damages.

52. In the Russell case the Tribunal quoted the following passage from the written submissions tendered in that case by Mr Testro:-

"In the absence of an extension of time having been applied for, the Applicant would have been by now in possession of a permit and entitled to commence construction of the development the subject matter of the permit. If time is not extended, the Applicant for the Permit will be entitled to be issued with a permit.

If time is extended, the Applicant for the Permit will lose that automatic and immediate entitlement to the Permit and will face a delay of in excess of 6 months in getting a decision from this Tribunal. That being the case, if the decision is adverse to the Applicant for the Permit, the Applicant for the Permit will have lost an opportunity not capable of being quantified for the purposes of damages or for which the Applicant for the Permit has no entitlement at law to damages. If the Applicant for the Permit is successful in the appeal, it will have suffered a delay in commencement which will suffer the same difficulty of quantification and absence of entitlement to recover damages. Either way, the Applicant for the Permit will have incurred holding costs and also expenses in relation to the "running" of the appeal which otherwise would not have been incurred."

53. There may be some room for a small quibble about the delays and whether a six month delay would necessarily be involved if time was extended. It would certainly be the normal practice of the Tribunal to hear an application for an extension of time first and then defer the hearing of the review. That is a sensible and convenient arrangement. It saves everybody, including the Permit Applicant, from having to incur the costs and trouble of a full hearing that might not be necessary if the extension is not granted. Nevertheless I think the review could be set down for a hearing on the merits with the question of extension dealt with at the beginning. The Tribunal grants speedy hearings to minimise or eliminate delay in appropriate cases where justice demands that course.

54. It is really contended that the Permit Applicant suffers "prejudice" by:-

(d) the possibility of an adverse result from the Tribunal either refusing to grant a permit, or granting a permit on less advantageous terms.

55. It must be noted that these "prejudices" are the ordinary results of an objector exercising the right that the legislation grants to apply for a review. They are the natural results of any application for a review. (I say this with planning cases particularly in mind. It may well be that there are cases, for example in other lists of this Tribunal where delay and costs of delay are a benefit rather than a prejudice to a respondent). The Permit Applicant would have to face them if the Objector applied for the review within time. It is hard to think of circumstances where they would not flow from an application for review being made within time. They are not prejudice suffered as a result of the Objector's "delay" in applying, but merely the result of any application for review.

56. Are these the sorts of "prejudices" intended to be covered by s.126(4)? If they are the ordinary results of any application for a review they will always be present in relation to any application for an extension of time to review under s.126(1). If s.126(4) is interpreted as argued for by Mr Testro in the Russell case, they will always bar an extension of time. Section 126 appears to be enacted to relieve an applicant for review of the results of failure to apply within time in cases where that is appropriate. If the decision of the Tribunal in the Russell case is correct, it appears that such relief will always be barred. The result of that would be that the section is useless and redundant.

57. It is a well known rule of statutory interpretation that statutory provisions should be read so as to avoid rendering redundant words contained within it. In this case it appears that not only words, but the whole section, would be redundant. I am confident that this is not the intention of the legislation.

58. In the case of Dingley Village Neighbourhood Centre Inc., City of Kingston & Ors v Pentaco Oil (Aust) Pty Ltd [1996] 20 AATR 272 at page 285 and thereafter I considered s.31(2) of the Administrative Appeals Tribunal Act 1984 which was the equivalent provision, so far as the AAT was concerned, of s.126 VCAT Act. It was the provision enabling the Tribunal to extend the time in which an application for review could be made. It differs from s.126 VCAT Act inasmuch as there is no provision in similar terms to s.126(4). There was a restriction in s.31(4A) AAT Act on the granting of such extensions in planning matters. That restriction did not apply to cases in the General Division of the AAT. The equivalent of s.31(4A) AAT Act survives in the VCAT legislation as Clause 56 of Schedule 1. It too applies only to planning matters.

59. Apart from subsection (4A), s.31(2) afforded a power to extend time which was unrestricted by any restraints written into the legislation.

60. In the last paragraph on page 285 of my reasons in the Pentaco case I discussed the purpose of such provisions, noting that their overriding purpose is to enable justice to be done. In that paragraph I refer to several authorities on that point where I say:-

"This brings me then to the application before me for an extension of time to appeal. The Responsible Authority did not oppose the grant of such an extension. Mr Dreyfus, of course, urged it. In his succinct submissions he reminded me that the overriding purpose of the power granted to extend time is to enable justice to be done. Time limits are expected to be observed. They facilitate the timely conduct of the business of the Court or Tribunal. A party obtaining benefit from the failure of another to observe a time limit is able to retain that benefit unless the discretion to extend is exercised in favour of the defaulter. The grant of an extension is not automatic. It is generally relevant to consider the history of the case, but none of these things establish any hard and fast rule, and each case must be judged on its own merits with various considerations being given appropriate weight in the circumstances of the case. Finally however, it is a matter of doing justice, or enabling justice to be done. In this connection Mr Dreyfus referred me to the High Court decision in Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 citing Hughes v National Trust Executors and Agency Co of Australia Ltd [1978] VicRp 27; 1978 VR 257. He also provided a copy of the recent unreported decision of Gillard J of the Supreme Court of Victoria on the subject in Griffiths v Malika Holdings Pty Ltd (Supreme Court No. 5173 of 1990, Judgement 27 August 1979 (sic) 1997). These cases concern time limits and the discretion to enlarge time."

61. I likewise think that the purpose of s.126 is to enable justice to be done. I think it intends to create a discretion to allow an extension where appropriate. I am aware that Pentaco, and the cases of higher authority cited in my above quotation might be distinguished on the basis that they dealt with provisions that contained no words in the terms of s.126(4) VCAT Act, but the Russell interpretation seems to me to deny the existence of any discretion under s.126 at all, and in the absence of authority to that effect I am not persuaded that this can be correct.

62. At the top of page 286 in the Pentaco reasons I went on to consider a somewhat different point. This was whether the provision of a satisfactory explanation for the delay is a condition precedent to the grant of an extension of time. In doing so I refer to the AAT decision in Reynolds & Ors v Macedon Ranges SC & Ors Appeal No. 1997/33825 noted at [1997] 19 AATR 9 and Hunter Valley Developments Pty Ltd v Minister for Home Affairs & Environment [1984] 58 ALR 205.

63. In the Reynolds' case another division of the AAT required an applicant for extension of time to lodge a written statement in relation to 8 questions which included the reasons for the delay in making the application, steps taken by the applicant for the extension to keep the Respondent aware that the decision was still being contested, prejudice to the respondent if the application to extend time is granted, whether the extension would unsettle other people or established practices, whether the review had a real chance of success, considerations of fairness, whether there would be a review in any event brought by other persons within time and any other reason as to whether it would be fair and equitable in the circumstances for the extension of time to be granted.

64. These 8 questions were based on the Federal Court decision in the Hunter Valley case based on a fuller passage appearing in the judgement of Wilcox J in that case at pages 310-311. It can be seen from that passage, as from the Reynolds' case, that prejudice is regarded as a relevant factor in such considerations. In fact, a fuller statement of the prejudice question appears in the Hunter Valley case. The AAT in Reynolds had asked:-

"(3) Will the Applicant for a permit or the Responsible Authority suffer any prejudice if the application to extend time is granted?".

"(c) Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor mitigating against the grant of an extension: see Doyle at p 287; Duff at pp 484-5; Hickey at pp 525-7 and Wedesweiller at pp 533-4."

(Doyle refers to Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283, Duff to Duff v Freijah [1982] FCA 159; (1982) 43 ALR 479, Hickey to Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 and Wedesweiller to Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528).

65. I note that the Federal Court refers to "prejudice to the respondent" and also makes particular reference to "any prejudice in defending the proceedings occasioned by the delay".

66. In Dix v Crimes Compensation Commission the Appeal Division of the Supreme Court of Victoria disapproved of the Hunter Valley case insofar as elevating the first matter mentioned namely "an acceptable explanation of the delay" into a condition precedent for the exercise of the discretion to extend time. Brooking J, with whom the rest of the Court concurred referred at page 302 to remarks of Sheppard J in Wedesweiller v Cole in relation to the discretion vested in the court being in completely unrestricted terms. Brookings J said, at the second paragraph:-

"I entertain no doubt that it is not a pre-condition to the grant of an extension of time under s. 31(2) of the Administrative Appeals Tribunal Act 1984 that the applicant show an `acceptable explanation of the delay'. The power given by s. 31(2) is given in unrestricted terms and it is not for the court to impose an arbitrary limitation of the power not expressed in the words of the statute."

"The distinction is there drawn between the recognition of matters relevant to the exercise of the discretion and the elevation of some matter into a condition precedent to the existence or exercise of the discretion: see in particular the observations of Lord Russell, cited at pp. 603-4, in Kostokanellis v Allen and the reference, at pp. 605-6, in the latter case to the adoption of a formula created by erecting what are merely relevant factors into arbitrary principles so as to allow the automatic production of a solution. For a very recent illustration of the refusal to impose restrictions on an unfettered discretion conferred by Parliament, see the decision of the Full Court in Leighton Contractors Pty. Ltd. v Kilpatrick Green Pty Ltd [1992] VicRp 83; [1992] 2 VR 505."

67. I am aware, as I have said, that it can be argued that s.126 VCAT Act differs from s.31(2) AAT Act. It might be said that s.126 is not in "unrestricted terms" having regard to its subsection (4). Section 126 is restricted by its subsection (4) in a way that s.31(2) was not. However, apart from Clause 65 and subsection (4), s.126 is "in unrestricted terms". Dix and the other cases (including Hunter Valley and Reynolds as clarified by Dix) apply to s.126, except to the extent that the discretion to extend time is restricted by subsection (4).

68. What then is the nature and extent of the restriction imposed by subsection (4)? Answering that question calls for an interpretation of subsection (4). The Russell interpretation, which includes within "prejudice" in subsection (4) the ordinary results of any application for review, elevates "prejudice", not merely to a condition precedent to the existence or exercise of the discretion but to an effective arbitrary bar dictating an automatic result namely the refusal of an extension. If that is what was intended s.126 is unnecessary. Its purpose would have been more clearly enacted by merely stating that an application for review made out of time is invalid and that no extension of time can be granted. A clear example of where this has been done can be found in s.77 of the Transport Accident Act 1986. Section 77(1) imposes a 12 month time limit on an aggrieved person to apply to the Tribunal for a review of the decision. Subsection (2) provides that the application can only be made within the time period specified in subsection (1) whilst subsection (2A) provides that subsection (2) does not apply in respect of an application received by the Tribunal before the 9 April 1998. Like the PE Act, the Transport Accident Act is an enabling Act in relation to VCAT. The VCAT Act or the PE Act might have contained a provision like s.77 of the Transport Accident Act if the effect of the Russell decision was intended.

69. I think that such a result would be absurd, unjust, contrary to the rule of interpretation previously referred to and contrary to what I take to be the purpose of s.126.

70. I note that there is an implication in the submissions presented by Mr Testro in the Russell case that contradicts the view he successfully persuaded the Tribunal to adopt in that case. Immediately following the passage from his submissions previously quoted he said:-

"The test which has been applied by the Tribunal for the purposes of section 126 VCAT Act and by the AAT for the purposes of section 31(2) Administrative Appeals Tribunal Act 1984 has been consistently the list of questions based on the Federal Court decision in Hunter Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 58 ALR 305. An example of an appeal decision which adapts and uses the Hunter Developments approach is Reynolds v Macedon Ranges Shire Council (Appeal No. 1997/33825, noted at (1997) 19 AATR 9 and at [8.15.2] of the Planning Appeal Casenotes in the Planning Volume of Butterworth's Planning and Environment-Victoria where the criteria are set out in full."

71. In saying this he overlooked the Dix and Pentaco cases, but the point I wish to make is that by referring to Hunter Valley and Reynolds he was recognising the existence, even in relation to s.126 VCAT Act, of at least eight relevant considerations in relation to a discretion to extend time. This, at least by implication, contradicts Russell which, on my understanding restricts the scope to one consideration namely prejudice, by erecting it into an effective arbitrary bar that imposes "the automatic production of a solution" (namely refusal), and thereby refuting the existence of any discretion at all. What is the point of referring to those cases and their 8 considerations if the considerations are superfluous because really only one is relevant? The reference to these cases with their 8 considerations implies a wider discretion and a wider range of considerations than Russell implies.

72. In my view, where s.126(4) speaks of "any prejudice or detriment to a party or potential party" it refers to prejudice or detriment occasioned by the delay between the last day prescribed for the lodging of the application for review and the day of actual lodgement or the lodging of the application for an extension of time under s.126. At any event, I do not think it includes prejudice or detriment that would be an inevitable result of any application for review lodged within time.

73. At the time of deciding Pentaco this distinction was not an issue. Yet I find that I reserved the distinction, even at that stage. I commenced the second full paragraph on page 287 with the following sentence:-

"Of course it is important to consider whether Pentaco will suffer any prejudice, other than the prejudice of having its case determined on its merits by the Tribunal." [Emphasis added].

74. I should make it clear that this interpretation of prejudice and detriment in s.126(4) relates only to the use of those expressions in that sub-section and in relation to the bar against extensions of time that it creates. Prejudice to the other parties is a proper and important matter to be taken into account in deciding whether an extension of time should be granted. As mentioned above, it is the third item in both the Reynolds and Hunter Valley lists. Those cases were not concerned with subsection (4) or any provision in like terms. They were not concerned with interpreting a statutory bar, but rather with what might be relevant considerations in relation to the exercise of a discretion to extend time for the commencement of proceedings. In that context prejudice should be assessed in terms of all effects that other parties will suffer but I would still discount an allegation that it is a relevant prejudice to have to face having the case determined on its merits.

75. In the present Australia Pacific Airports case the delay, as I have found, was one day. The Responsible Authority did not suffer prejudice thereby, and I cannot see that Mr Gokler has suffered any prejudice of the relevant sort either. Here there was a very short delay and Mr Gokler had no reason to suppose, at the time, that the time limit was expiring anyway. Having regard to all the circumstances, I think that any possible relevant prejudice would be minimal and suitable to be disregarded on that basis. As it is I have no basis for finding prejudice or detriment of a relevant sort suffered by any party or potential party. I therefore find that s.126(4) does not, in this case, bar the discretion granted by s.126(1).

76. Before leaving the discussion of s.126(4) I should say that I am not dissuaded from the conclusion by a passing observation of a Deputy President of this Tribunal in paragraph 17 of his reasons in World Link Assets Pty Ltd v Kay, FAI General Insurance Ltd, a Domestic Building List case DB 324/98 also denoted as "Media Neutral Citation" [1999] VCAT DB 5. In that paragraph the learned Deputy President said in relation to s.126(4):-

"There is a "prejudice or detriment", it seems to me, in the insurers, if time was extended, no longer having a vested right of being free from the prospect of appeal."

77. It seems to me that the advantage of having a decision in relation to which the time for appeal by others has expired is an advantage. As I pointed out in paragraph 60 and the cases there referred to, the courts have referred to such a benefit as one a prospective respondent can retain unless the discretion to extend is exercised in favour of the defaulter. I do not recall any of the cases referring to contingent benefit as a "vested right".

78. At any event the Deputy President appears to be recognising the possible view that the risk of a less favourable result on review might be prejudice for the purpose of s.126(4). That would be contrary to what I have decided. However I observe that his comment was one made in passing. It was in no way necessary to the decision in that case. Indeed it was a byway to a byway so that careful consideration of it was not called for. It was beside the point because:

(a) the Deputy President thought it might be remedied by an order for costs or damages;

(b) there was other prejudice in that the builder respondent had become bankrupt which, the Deputy President said, was "to the point"; and

(c) the case was not decided on s.126(4) anyway, but rather on the ordinary merits of whether an extension should be granted including, particularly, the lack of adequate explanation of delay by the applicant for the extension.

I do not think the Deputy President in that case had occasion to, or did, consider the question as I have done. If it had been necessary to his conclusion he would probably have considered it further and may well have come to a view similar to my own.

79. For reasons already given I find that it is appropriate to extend the time limit fixed for the commencement of this application for review pursuant to s.126(1) VCAT Act.

80. I propose to extend the time to the 16 February 1999. On that basis, with everything necessary to a valid application for review having been accomplished on the day before, I believe the review will be in order and able to proceed to a hearing on its merits.

The time for the Applicant to commence this application for review is extended pursuant to s.126(1) VCAT Act to the 16 February 1999.