Chapman, Ernest Max McLeod v Reilly, John Daniel [1983] FCA 367

BETWEEN: EARNEST MAX McLEOD CHAPMAN Applicant AND: JOHN DANIEL REILLY Respondent Neaves J.

Chapman ("the applicant") under paragraph 11(1)(c) of

the Administrative Decisions (Judicial Review) Act 1977

("the Act") for an extension of the time within which

to make an application under section 5 of that Act for

an order of review in respect of a decision said to have

been made by John Daniel Reilly, an Assistant Commissioner

of the Australian Federal Police ("the respondent"), on

The applicant alleges that he was employed in the New South Wales Police Force from February 1968 until 15 July 1983, being the date on which his resigna- tion took effect. He further alleges that on 2 May 1983

he applied for a position as a constable in the Australian Federal Police and that on or about 27 June 1983 he

received a letter bearing that date signed by Inspector

M.J.M. Vincent which, so far as material for present

"I refer to your application for employment with the Australian Federal Police, as a Constable in the General Policing Component, and I am pleased to advise that the application has been successful, and accordingly, you are offered

"If you wish to accept this offer of employment you should sign the attached 'Acceptance of Offer' document and return it to me within seven (7) days. Before signing the document please read it carefully so that you-understand the terms under which you are being offered employment with the Australian Federal Police.

"Should you not wish to accept this offer please notify Mr Vincent as soon as possible in writing or by telephoning the Recruiting Office, (062) 451211.

Australian Federal Police Recruiting Unit, Havelock House, Northbourne Avenue, Turner, ACT

The applicant says that he signed the form of acceptance enclosed with that letter and forwarded it to the recruiting office of the Australian Federal Police. Subsequently, on 12 July 1983, he was interviewed by

the respondent and on 13 July 1983 he received a letter

bearing that date signed by the respondent reading as

"I refer to a letter dated 27 June 1983 from Inspector VINCENT offering you appointment as a Constable with the Australian Federal Police. Your reply of acceptance, in paragraph three , acknowledged that the offer was conditional upon the satisfactory completion of other matters and that the disclosure of new information could

"As the result of information which has come to my attention, including that provided by you during our meeting of 12th July, I have decided, because of matters not disclosed in your original application or at your subsequent interview with the recruiting officer, that the offer of appointment to the Australian Federal Police previously made to you is withdrawn. Accordingly, you will not be required to report to the Officer in Charge, Recruiting Branch on Monday 18 July 1983 as previously arranged."

reviewed is that embodied in the letter dated 13 July 1983.

Immediately upon receiving the letter dated 13 July 1983 the applicant sought legal advice. He was advised to commence proceedings in the Supreme Court of the Australian Capital Territory. Proceedings were very shortly thereafter commenced in that Court against the Commissioner of the Australian Federal Police alleging -

(a) that by an oral agreement made on 17 June 1983 the Commissioner agreed to employ the

(b) in the alternative, that by a written agreement made on 28 June 1983 the Commissioner appointed the applicant to that office; and

(c) that by the same written agreement the Commissioner agreed to appoint him to

The action was brought on for hearing expedi- tiously. It was heard on 15, 16 and 26 September 1983 and judgment was given on 7 October 1983. The action was dismissed. Further argument took place in the Supreme

Court on 15 October 1983 but, again, the applicant was

unsuccessful. I was informed that no appeal has been

The applicant then took further legal advice. As a result an application for an order of review under

the Act was filed in this Court on 1 November 1983.

It is common ground that had the application been filed on or before 10 August 1983 no extension of time would have been necessary (sub-paragraph 11(3) (b) (iii)

of the Act). An extension of something less than 3 months

the application been filed within the prescribed time, the

Court would, in the exercise of its discretion, have stayed proceedings thereon while the applicant pursued the alternative remedy that he was seeking in the Supreme Court proceedings. It was further submitted that the applicant had provided a satisfactory explanation for such delay as had occurred in commencing the proceedings in

this Court and that there was no substantial prejudice to

The application was opposed on a number of grounds. It was said that the respondent was not aware until the application was filed on 1 November 1983 that

proceedings under the Administrative Decisions (Judicial

Review) Act 1977 were contemplated. It was also said

that the applicant had not satisfactorily explained why

he could not have taken the formal step of commencing the proceedings within the prescribed period even if the applicant intended that the proceedings in the Supreme Court should have priority. It was further submitted that the Court should take into account the public interest in the finality of litigation and that the delay in commencing the proceedings had been due solely to the applicant's desire to pursue an alternative remedy. An argument was also put that the issues of substance that would arise on the application for an order of review had already been decided adversely to the applicant in the Supreme Court proceedings

and that, by his application to this Court, the applicant

was seeking a review of the findings made by the Supreme Court. In consequence, it was said, this Court should refuse to exercise its discretion in the applicant's favour. Finally, it was submitted that there was no basis upon which the Court could grant the declaration sought by the applicant that he should have been and should be appointed

On the hearing of an application for the extension of the time within which to bring proceedings under the Act, the merits or otherwise of the substantive application may properly be taken into account as a consideration relevant to the exercise by the Court of its discretion: Lucic v.

Nolan (1982) 45 A.L.R. 411 at p. 417. Counsel for the

applicant accepted that proposition but contended that, unless it could be shown that the application had no merit whatsoever, the Court should not rely on any doubt it

might have as to the ultimate outcome of the proceedings

as a ground for refusing the extension of time. He further submitted that even if it were correct to say, as the respondent did, that some of the matters which the applicant sought to raise in the proceedings in this Court had been the subject of consideration by the Supreme Court, it was demonstrable that the proceedings in that Court did not cover the whole of the ground on which the applicant sought to base his claim to relief under section 5 of the Adminis-

trative Decisions (Judicial Review) Act 1977. There were,

he contended, a number of legal points and a number of factual matters with which the Supreme Court was not concerned but which are open to be argued before this Court should the application for extension of time be

As at present advised there would seem to be a number of difficulties standing in the way of the applicant establishing that he is entitled to the relief sought in the application filed on 1 November 1983. Some of those matters were adverted to during the hearing of this application. However, because of the nature of the present application they were not fully argued and I do not propose to express any views on them. It is sufficient for present purposes to say that the substantive application appears to raise some matters which were not, and could

not be, in issue in the proceedings in the Supreme Court.

Notwithstanding the matters relied upon by the respondent, I am of opinion that the applicant has discharged the onus resting upon him to satisfy the Court that the extension of time sought should be granted. He has, in my view, provided an acceptable explanation of the delay

and it is fair and equitable in the circumstances to accede

I, therefore, order that the time within which to bring proceedings under the Act for an order of review in respect of the decision of the respondent embodied in

the letter dated 13 July 1983 be extended up to and includ-

I certify that this and the preceding seven (7) pages are

a true copy of the Reasons for Judgment herein of the: Honourable Mr. Justice Neaves.