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[2002] AATA 212
respondent. The decision under review is affirmed; Mr Casper's application for an extension of time is refused and his application for review is unsuccessful (Decision; paras 47-48).
Mr Casper sought review of an ACA decision about withdrawn mobile phone numbers but lodged his AAT application five days late. Although the Tribunal accepted his explanation for the delay, it refused to extend time because the Tribunal could not provide the remedy he sought under the Telecommunications Numbering Plan and the substantive case lacked sufficient merit and utility. Any procedural unfairness would not have changed the outcome, so the Tribunal affirmed the ACA decision and dismissed the application.
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1,700 words · generated 09/07/2026
Mr Peter Casper applied to the Administrative Appeals Tribunal for review of a decision of the Australian Communications Authority (ACA) dated 24 October 2001 concerning the withdrawal and reallocation of certain mobile telephone numbers (para 1). The AAT application was lodged on 28 November 2001, five days after the statutory 28-day time limit for filing (para 2). Mr Casper therefore sought an extension of time under s 29(7) of the Administrative Appeals Tribunal Act 1975.
1 cited instrument linked from this judgment.
At hearing (30 January 2002) the Tribunal received evidence and submissions from Mr Casper in person and from Mr J Fong, a legal officer for the ACA, who appeared by telephone (para 3). The ACA filed supplementary written submissions (filed 11 February 2002) and Mr Casper replied (para 22-23). The Tribunal accepted Mr Casper's explanation for delay, including financial insecurity and health difficulties, as plausible and acceptable (paras 8-9, 27). However, after analysing the substantive case and the Tribunal's remedial powers under the Telecommunications Numbering Plan 1997, the Tribunal concluded it should not exercise the discretion to extend time because the Tribunal could not grant the applicant the outcome he sought and the substantive case lacked sufficient utility (paras 34, 42, 44, 47). The decision under review was affirmed and the late application dismissed (Decision; paras 47-48).
The Tribunal applied established principles for deciding whether to extend time, principally drawing on the guidance in Hunter Valley Developments (as summarised at para 5) and other authorities. Those principles include: the prima facie rule that out-of-time applications should not be entertained; relevance of the applicant's conduct in contesting the decision; prejudice to respondent; prejudice to the public; the merits of the substantive application; and fairness as between applicants (para 5). The Tribunal recognised its discretion under s 29(7) is broad but must be exercised judicially in light of those considerations (paras 5-7).
Two central factual-legal determinations drove the outcome:
The Tribunal accepted Mr Casper's explanation for delay as plausible and acceptable (para 27), so delay alone did not automatically foreclose relief.
However, the Tribunal analysed the substantive merits and the remedy sought. The Tribunal examined the Telecommunications Numbering Plan provisions (notably chapter 6 allocation rules and clauses 7.20 and 10.11) and concluded that the ACA lacked the power to recover numbers from current end users and compel their re-issue to Mr Casper; the Plan allocates number blocks to carriers and the issuance of individual numbers to customers is at a carriage service provider's discretion (paras 34, 18-21). Further, even if the ACA could withdraw numbers from Optus, it could not directly re-allocate them to Mr Casper, and the technical and financial disruption to current end users would outweigh any possible benefit to the applicant (paras 34, 20).
Given that the Tribunal could not deliver Mr Casper's sought remedy, the Tribunal held that any denial of procedural fairness in the earlier withdrawal would make no difference to the outcome; on that basis, a procedural fairness breach did not entitle him to relief in the AAT (paras 39-42). Because the substantive application lacked sufficient merit and the Tribunal could not grant effective relief, it was not proper to exercise the discretion to extend time, even though the applicant's explanation for delay was accepted (paras 44-47).
Before this decision: The law on extensions of time in Australia had long been guided by the Hunter Valley principles, which present a non-exhaustive list of considerations. Authorities such as Comcare v A'Hearn, Re Beard, Lucic v Nolan and cases like Hamilton and Fares Rural Meat outline that the discretion to extend is wide and must be exercised judicially; also, that an explanation for delay is ordinarily given but is not a necessary precondition to extending time (paras 5-7, 45). The principle that a denial of procedural fairness can be non-fatal where it would not have altered the result is also entrenched (paras 39-41).
After this decision: The AAT in Casper applied those authorities in a practical way. The Tribunal reaffirmed that acceptance of a delay explanation does not automatically require extension if the substantive case lacks merit or the Tribunal lacks the power to provide the outcome sought (paras 27, 42-44). Practitioners should understand that where the Tribunal cannot provide effective relief, utility and merits will be decisive in extension decisions.
This decision sits as an application by the AAT of existing principles to a telecommunications numbering dispute. It emphasises that the Tribunal will consider not only reasons for delay but also whether granting an extension would be a worthwhile use of adjudicative resources given the likely remedial outcome (paras 43, 44).
Tribunal acceptance of delay explanation (para 27):
On limits of ACA power and lack of remedial utility (para 34):
Procedural fairness and result-identical test (paras 39-42):
On refusing exercise of discretion (para 44):
This decision guides outcomes where:
In such patterns, the Tribunal will weigh explanation for delay against the merits and utility of the substantive claim and may refuse an extension where granting it would be futile or an inefficient use of public resources (paras 27, 34, 42-44).
This AAT decision itself cites and applies pre-existing authorities (Hunter Valley, Comcare v A'Hearn, Hamilton, Fares Rural Meat, Beitseen, Attorney-General (NSW) v Quin) to the extension-of-time context (paras 5-7, 36, 39-43). The present decision does not record any subsequent appellate consideration or later courts' treatment of this particular AAT ruling; the text contains no post-decision citations or later judicial treatment. Therefore, from the document alone it is not possible to identify how later courts treated this AAT decision. What the AAT does do is apply established judicial guidance to reach a practical outcome in an administrative allocation dispute.
Limits of remedial creativity in allocation regimes:
Procedural fairness where alternative remedies exist:
Utility test and public resources:
Interaction between fee waiver processes and timeliness:
Competence of alternative fora:
Conclusion: Casper is a practical application of long-standing extension-of-time principles. It stands for the proposition that even an acceptable explanation for delay will not secure an extension where the tribunal cannot furnish effective relief and the substantive application lacks sufficient merit and public utility. Practitioners should focus early on whether the tribunal can grant the applicant's intended remedy when advising on timeliness and possible extension applications (paras 27, 34, 42-44).
DECISION AND REASONS FOR DECISION [2002] AATA 212
Decision The decision under review is affirmed. This means Mr Casper's application for an extension of time is unsuccessful.
PRACTICE AND PROCEDURE - Telecommunications - Proceedings - Application for extension of time limit for review of decision - whether discretion should be exercised to extend time limit - procedural fairness - whether outcome affected by procedural fairness
Telecommunications Numbering Plan 1997 clauses 7, 10
Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441
Attorney-General (NSW) v Quin (1990) 120 CLR 7
Re Beard and Commissioner of Superannuation [1999] AATA 502; (1999) 56 ALD 265
Beitseen v Johnson (1989) 29 IR 336
Fares Rural Meat v Australian Meat Corporation [1990] FCA 139; (1990) 96 ALR 153
Re Freeman and Australian Postal Commission (AAT 8830, 9 July 1993)
Hamilton v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 657; (1993) 35 ALD 205
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and the Environment [1984] FCA 176; (1984) 3 FCR 344
Lucic v Nolan (1982) 45 ALR 411
1. Mr Casper seeks a review of a decision made by Dr Roslyn Kelleher, Senior Executive Manager Telecommunications, Australian Communications Authority ("the ACA") made on 24 October 2001. In her decision Dr Kelleher concluded:
"23. I also am of the view that your holding of unactivated [mobile phone numbers] between 1993 and 1998 is clearly inconsistent with the efficient use of numbers under the [Telecommunications Numbering] Plan. Furthermore, you appear to anticipate that the recovery of the numbers from the existing end users and Optus will lead to the numbers being re-issued to yourself. However, the ACA has no power to ensure that result. Accordingly, even if the issue of the numbers to the other end users were inconsistent with the Plan and the ACA were able to exercise its powers to recover the numbers, having regard to the various factors above, I would not consider it appropriate to exercise the power of recovery in this case."
2. Mr Casper's application to the Administrative Appeals Tribunal ("AAT") for a review of this internal decision was made on 28 November 2001, five days after the prescribed statutory time limit of 28 days. Mr Casper now seeks an extension of time pursuant to sub-section 29(7) of the Administrative Appeals Tribunal Act 1975.
3. The applicant represented himself at the hearing. Mr J Fong, an ACA legal officer, represented the ACA and presented the ACA case by conference telephone. At the end of the hearing Mr Fong sought additional time to make further written submissions. The Tribunal agreed to this request, requiring ACA's supplementary submissions to be provided to the Tribunal by 11 February 2002. Mr Casper would then be given fourteen days to respond to the ACA's supplementary submissions.
4. The relevant issues in this particular application for review is whether or not the Tribunal should exercise its discretion under sub-section 29(7) of the AAT Act and extend the time for making the application for review. The relevant provision is as follows:-
29(1) An application to the Tribunal for a review of a decision:
(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section)"
5. In determining whether or not to grant the applicant's request for an extension of time it is relevant for the Tribunal to consider the principles outlined by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344 summarised as follows:
(i) prima facie, proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so;
(ii) it is relevant whether the applicant rested on his [or her] rights or took action to make the decision-maker aware that the decision was being contested;
(iii) any prejudice to the respondent that would be caused by granting the extension of time is relevant;
(iv) any wider prejudice to the general public in terms of disruption to established practices is relevant;
(v) the merits of the substantial application are relevant; and
(vi) fairness of granting the extension of time as between the applicant and other persons in a like position is relevant..."
6. The Tribunal acknowledges that the functions of the Administrative Appeals Tribunal are somewhat different from those of the Federal Court. However, it seems to be widely recognised that these principles are applicable in the determination of these matters (see Re Freeman and Australian Postal Commission (AAT 8830, 9 July 1993)). The Tribunal also notes the Federal Court decision of Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441, where Hill J at page 6 stated:
"I should say that Wilcox J in Hunter Valley Developments Pty Ltd was at pains to make clear that he was not seeking to set out principles of law governing the exercise of discretion to extend time. Care must be taken by the Tribunal to ensure that there is not a slavish adherence to the matters which are referred to in that judgment, which are listed merely as matters for guidance, in determining the extensions of time under the Administrative Decisions (Judicial Review) Act (1977), a context which differs slightly from that in the AAT Act..."
"...At the end of the day the discretion of a court or tribunal given power to extend time will be a wide one, to be exercised as the justice of the case may require...."
7. In addition to the Hunter Valley Developments case, the Tribunal has considered the following authorities:
* Section 29(7) [of the AAT Act] does not set out criteria for the exercise of the tribunal's discretion to extend time. The tribunal's discretion is unfettered but must be exercised judicially having regard to both the relevant facts and the guiding principles established by case law.
Re Beard and Commissioner of Superannuation [1999] AATA 502; (1999) 56 ALD 265;
* Although in an application for extension of time, an explanation for the delay in bringing the substantive application will normally be given, such an explanation is not an essential pre-condition for the granting of the extension.
Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441; and
* The onus is upon the applicant to show that it is proper for the Tribunal to exercise its discretion in his or her favour.
Lucic v Nolan (1982) 45 ALR 411
8. Mr Casper stated uncertainty as to his eligibility for a fee waiver contributed to the delay in making his application for review. He said that based on past family experiences with Government Agencies, he believed that a fee waiver would not be available to him. Moreover, he had no contact with the AAT on this issue beforehand and was uncertain whether the fee waiver would be available to him. Mr Casper stated that a fee waiver was essential to his application for review because of financial insecurity at the time of filing his application. Mr Casper had been unemployed since March 2001, but was not in receipt of Social Security entitlements. Mr Casper said that the ultimate fee waiver by the AAT had been "unexpected and unanticipated".
9. Mr Casper said that he was hospitalised for a two year period following a road accident in 1995. Since that time, he had been treated for depression and anxiety disorder. In addition, his short-term memory had been affected, his eyesight had deteriorated and he had problems completing forms. He now relied on his wife to carry out the latter task.
10. Mr Casper contended the ACA submission that he had not subscribed to the telecommunication services for which the mobile phone numbers had been issued for nearly five years since 1993 was "deception" on the part of the ACA. Mr Casper produced Mobile Phone Accounts (for eight numbers), issued by Optus for the period 5 July 1998 to 4 August 1998 and 5 August 1998 to 4 September 1998 together with an Optus Statement (dated 15/12/93) for a "Request for Multiple Digital Services". Mr Casper submitted that these documents were evidence of his subscribing to Optus services over the 5 year period 1993-1998.
11. Mr Casper challenged the ACA submission that he "ostensibly" wants the Respondent to return the relevant numbers to him. In response to a question on this point by Mr Fong as to what Mr Casper sought in any legal proceedings, Mr Casper stated that the preliminary need was for the withdrawn numbers, currently in general use by other customers, to be returned to the ACA. A succeeding matter would seek a higher court order to have the numbers returned to him, or alternatively, some form of tortious action or action under the Trade Practices Act for damages.
12. In relation to the Telecommunications Numbering Plan 1997, Mr Casper contended that:
(a) In a letter to him from Optus (18 December 1998), Optus had conceded that an error had been made in withdrawing two mobile phone numbers;
(b) ACA had been in breach of their Numbering Plan with respect to the operation of clause 10.11.7 ("Carriage Service Provider [eg Optus] must not recover numbers without replacing them") and clause 10.12.3 ("Carriage service provider's obligations of issuing recovered numbers to another customer")
(c) In relation to Clause 7.20.2 and the balance between benefits and problems for himself relative to the carriage service provider, the problems impacted adversely more on himself and his family.
13. Mr Casper concluded that he sought mediation, rather than litigation, in order to resolve his dispute with the ACA.
14. Mr Fong submitted that it was a prima facie rule at law that any application falling outside the prescribed period should not be entertained. Accordingly, the question arose whether it is appropriate in the circumstances to dispense with this prima facie rule and allow Mr Casper to lodge his review application outside the prescribed period. That is, whether Mr Casper had provided an acceptable explanation for his delay and shown that it was fair and equitable in the circumstances to receive an extension.
15. Mr Fong contended that Mr Casper was aware of financial assistance from the AAT but had no faith that it would be provided. Mr Fong referred to an Email to Peter Stirk [Deputy Registrar] of the Tribunal, dated 9 December 2001, where Mr Casper stated:
"The reason my application was late was because I was reluctant to request financial assistance until I had previously made every reasonable attempt to obtain employment and earn the required fee".
16. It was Mr Fong's contention that it was clear from this Email that, prior to Mr Casper's application for review on 28 November 2001, he had long been aware that "financial assistance" in the form of a fee waiver by the Tribunal was available to him. Nonetheless, he had declined to seek this assistance within the prescribed period for reasons of personal principle. He contended that the circumstances for delay were within Mr Casper's control and that the delay arose from his "personal disposition".
17. Mr Fong submitted that in any application for extension of time, the merits of the application were relevant. In this regard, he contended there was no merit in Mr Casper's application. ACA had no power to review mobile phone numbers they had withdrawn under the Telecommunications Numbering Plan and to re-issue them to Mr Casper. Optus had now re-allocated these numbers and the numbers were in current use by other customers.
18. Mr Fong submitted the only provision in the Numbering Plan that could conceivably authorise recovery from Optus was clause 7.20. Subclause 7.20(1) allowed ACA to withdraw numbers allocated to Optus if they were allocated, issued or transferred or used in a way inconsistent with Plan. In order to do so in such a case, ACA must be satisfied that Optus had acted inconsistently with the Plan in re-issuing the relevant numbers to other customers. Furthermore, subclause 7.20(2) stated that in deciding to withdraw numbers, ACA must be satisfied that the benefits accruing to end users and carriage service providers from withdrawal outweigh the technical and financial costs of withdrawal to those parties.
19. It was Mr Fong's contention that there was no evidence to suggest that Optus' actions were inconsistent with the Numbering Plan. Optus' decision to recover the numbers from Mr Casper was authorised under subclause 10.11(7) of the Plan. Subclause 10.11(7) allowed a carriage service provider to recover a number without replacement if the customer did not subscribe, within a reasonable time, to the carriage service for which the number was issued. Mr Casper had not subscribed to the services for which those numbers were issued for nearly 5 years since 1993.
20. It was Mr Fong's further contention that, regardless of any impropriety on the part of Optus, the numbers had been re-issued and were in current use by other customers. The technical and financial costs of recovering the numbers from those customers would be substantial. In contrast, the potential benefit accruing to end users and carriage service providers would be minimal. Accordingly, Subclause 7.20(2) of the Plan could not be possibly made out.
21. Mr Fong concluded with the submission that Mr Casper had not provided any acceptable explanation for his delay to justify the grant of an extension of time. Furthermore, there was clearly no merit in Mr Casper's substantive case. The application for an extension of time under subsection 29(7) of the AAT Act should be dismissed. Moreover, he submitted that it was not in the public interest to use public moneys to litigate this matter.
22. Supplementary submissions were received from ACA on 11 February 2002. The issues raised were the same as identified at the Hearing, but with greater expansion, on some points. The issues addressed were:
* Whether there was an acceptable explanation for Mr Casper's delay in lodging his application for review with the Tribunal;
* Whether there was any merit to Mr Casper's substantial application;
* Whether Optus' actions were inconsistent with the Telecommunications Numbering Plan;
* The balance between benefits and problems relative to technical and financial consequences of withdrawal for end users and carriage service providers;
* Whether the withdrawal of numbers would benefit Mr Casper; and
* The role of the Telecommunications Industry Ombudsman.
23. Mr Casper has responded to the above supplementary submissions (28 February 2002).
24. The Tribunal has carefully reviewed the above supplementary submissions and considered them in the context of all the evidence and information before the Tribunal.
25. The objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times.
26. The Tribunal has considered the merits of this application by having regard to the case law authorities, in administrative law, relating to requests for applications for an extension of time (paragraphs 5,6,7).
27. The Tribunal accepts Mr Casper's evidence (paras 8, 9) for his explanation for the delay in lodging his application for review as being plausible. The Tribunal finds his explanation as acceptable in all the circumstances.
28. However, notwithstanding this finding, the Tribunal must also consider the merits of Mr Casper's substantial application.
29. Mr Casper has submitted that there may be substantial merits to his application as it was his belief that the numbers were not legally withdrawn. He has also contended that the premature removal of any numbers was a breach of his contract with Optus and contended it would also appear to be a breach of the Trade Practices Act.
30. Mr Casper has further contended that at all times he has sought to achieve the return of the set of phone numbers withdrawn by Optus - not merely financial compensation. He has placed a value on these number at $70,000 based on oral offers made to him. (See Supplementary submissions).
31. Mr Casper has stated that he sees the withdrawal and return of numbers to him as a two-step process. He has contended that it is not his intention to directly use the Plan to demand that ACA return his numbers, as there are other more appropriate venues and tools for enforcing their return.
32. Mr Casper has also submitted that following the recovery of the numbers, he is prepared to negotiate with Optus regarding the return process as well as in regard to a financial settlement.
33. The ACA has referred to Mr Casper's evidence at the hearing where he has stated that his ultimate goal was to have the numbers re-issued back to him, through the ACA withdrawing the numbers from Optus.
34. However, the ACA has further submitted that any withdrawal of numbers would not benefit Mr Casper because:
* The Plan only provided for the ACA to allocate numbers to carriage service providers in prefix blocks (see Chapter 6: Allocation of Numbers). The subsequent issue of individual numbers from their allocated blocks to particular customers is at the discretion of the provider;
* Even if it withdrew the numbers from Optus, the ACA did not have the power under the Plan or any telecommunications legislation, to directly issue the numbers back to Mr Casper. The numbers would simply remain with the ACA;
* The ACA contends that if Mr Casper's intention was for the ACA to withdraw the numbers from Optus, allocate them to another carriage service provider and then compel that provider to issue them to him, this would be contrary to subclauses 6.23(1), 6.24(1) and Schedule 8 of the Plan; and
* Finally, the ACA submitted that it had no power to compel a carriage service provider to issue numbers to a particular customer anyway.
35. Essentially, the Tribunal considers that the substantial merits of Mr Casper's case against the ACA, before the Tribunal, involves a failure in procedural fairness in the manner the numbers were withdrawn.
36. In Hamilton v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 657; (1993) 35 ALD 205 ((1993) [1993] FCA 657; 48 FCR 20), Beazley J stated (at 213):
"...as a general rule, consistency of treatment of persons the subject of administrative action is of primary importance in good administration. Indeed, consistency of treatment in like circumstances is probably best categorised as a constituent ingredient of consistent decision-making. Where a decision-maker has introduced and formalised uniform procedures for persons the subject of the decision-making process, procedural fairness requires that in normal circumstances persons have equal access to those procedures."
37. In Mr Casper's case, that means he would have had a legitimate expectation that the recovery of the numbers held by Mr Casper and their subsequent issue to other customers was consistent with administrative procedures as set out in clause 7.20 and clause 10.11 of the Numbering Plan.
38. The concept of "legitimate expectation" is well established in Australia_._ In Attorney-General (NSW) v Quin (1990) 170 CLR 1, Mason CJ explained the basis of the concept as follows (at 20-21):
"It is the presence of a legitimate expectation which conditions the existence of a claimant's right to procedural fairness and the corresponding duty of the decision-maker to observe procedural fairness in the treatment of the claimant's case. The context of that duty is dependent upon the circumstances of the particular case, but its existence is determined by reference to legal principle. So, a legitimate expectation may be created by ...the existence of a regular practice...
...although in one sense it means nothing to say that a person entitled to fair procedures or good administration has a legitimate expectation of being accorded such treatment, it is still necessary to identify a relevant legitimate expectation, and that legitimate expectation may consist of an expectation of a procedural right, advantage or opportunity... The procedural right which forms the subject-matter of the legitimate expectation will not necessarily be the same as the procedure which procedural fairness or good administration, the duty to accord which is enlivened by the expectation will demand."
39. Analysis of cases where there has been a denial of procedural fairness indicates that it is not necessarily fatal to a subsequent decision, but that it normally will be. However, there is a qualification in cases where the decision would have been identical even if there had been no denial of procedural fairness.
40. In Fares Rural Meat v Australian Meat Corporation [1990] FCA 139; (1990) 96 ALR 153, Gummow J stated:
"[170] What is the position if there has been a denial of procedural fairness but this appears to have made no difference to the result? The law still appears to be uncertain, some decisions appearing to proceed on the footing that in such a case there is no ground for relief, and other decisions proceeding on the footing that there is jurisdiction to grant relief, but that in its discretion the court may refuse relief as not being of sufficient utility."
41. In Hamilton v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 657; (1993) 35 ALD 205 where it was clear that the applicant was not entitled to permanent residence status. Nothing she could have said, had proper procedures been complied with, could have strengthened her case. Failure to afford procedural fairness was held not to be fatal to the decision.
42. The Tribunal concludes that in Mr Casper's fact situation, a denial of procedural fairness in the withdrawal of the numbers appears to make no difference to the result sought from the ACA i.e. the outcome Mr Casper seeks. The Tribunal further concludes that the prescribed powers of the ACA do not permit ACA to seek such an outcome. That is, to recover the numbers from existing end users and Optus and the re-issue of numbers to Mr Casper. Accordingly, the Tribunal concludes the result will be identical, even if there had been no denial of procedural fairness.
43. The Tribunal makes the observation that the views of the Full Court of the Federal Court expressed in Beitseen v Johnson (1998) 29 IR 336 at 338 are particularly relevant:
"When the judicial system is in an apparently permanent state of stress, and courts are finding it increasingly difficult to keep up with their work, they cannot afford the luxury of spending time on interesting questions of law which, because they have been overtaken by events, have become of academic interest only. With so many cases of real importance to litigants, and often to the public generally, waiting to be heard or for judgment to be given, others must be discouraged from commencing or pursuing litigation which can have little or no practical result - particularly if that litigation is being funded in whole or in part of the taxpayer."
44. On consideration of the legal principles for an extension of time (see paras 5,6,7) in relation to the Tribunal's findings, the Tribunal concludes that Mr Casper has not shown that it is proper for the Tribunal to exercise its discretion in his favour. The Tribunal finds that the history of the matter would indicate that there was no valid substantial issue to be litigated before the Tribunal, sufficient to justify an extension of time. Moreover, the Tribunal has no jurisdiction to award damages in the factual context of this matter. There is no sufficient utility to pursue the substantial merits of Mr Casper's case in the Tribunal's jurisdiction, whether by litigation or mediation.
45. Notwithstanding that the Tribunal accepts Mr Casper's explanation for delay in bringing the substantive application, such an explanation is not an essential pre-condition for the granting of the extension (A'Hearn's case).
46. However, the Tribunal makes the observation that there are adjudicative fora, in other jurisdictions, where Mr Casper could pursue the application he has brought before the Tribunal.
47. Based on the above reasons, and in considering all of the circumstances of this particular case, the Tribunal finds that it should not exercise its discretion to extend the time for making Mr Casper's application to the Tribunal for a review of a decision by the ACA.
48. The Tribunal decides to affirm the decision under review. This means Mr Casper's application for review is unsuccessful.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: .....................................................................................
Comcare
A'Hearn
(1993) 45 FCR 441
(1990) 120 CLR 7
(1990) 96 ALR 153
(1984) 3 FCR 344
(1990) 170 CLR 1
(1989) 29 IR 336
(1982) 45 ALR 411
(1998) 29 IR 336
The decision under review is affirmed; Mr Casper's application for an extension of time is refused and his application for review is unsuccessful (Decision; paras 47-48).