Duff, R. & Ors v. Freijah, F.M. & Ors [1982] FCA 191

ROSS DUFF and ORS. v, FREDERICK M. FREIJAH and ORS.

IN THE FEDERAL COURT OF AUSTRALIA ) ) 1 VICTORIA DISTRICT REGISTRY ) V.G. No's. 79 = 87 inc. ) of 1982 GENERAL DIVISION ) BETWEEN: | ROSS DUFF AND OTHERS Applicants and ~ FREDERICK H. FREIJAH AND OTHERS Respondents « NORTHROP J. REASONS FOR JUDGMENT 11 AUGUST 1982

involving fifteen separate applicants were each commenced on 22 June 1982 when each application was ladged with the Victoria District Registry of the Federal Court of Australia. At all relevant times each applicant was a person employed in the Australian Public Service, "the Service", under' the

Public Service Act 1922, as amended, "the Act", in the

Department af Sacial Security. Each applicant is a member of the Administrative and Clerical Offxzcers Association, "the Association", an organization of employees under the Conciliation and Arbitration Act 1904, as amended. During the month of November 1981 each of the applicants, pursuant:

to bans on work, was refusing to perform all the duties

normally performed. On different dates between 9 and 26

November 1981 inclusive persons in the Service superior to each of the applicants respectively, in purported exercise of powers under s.32A of the Act, declared that each applicant Tespectively was not to be paid salary. Within Victoria some ninety declarations were made affecting some ninety officers

Each of the applications herein 1s brought under the Administrative Decisions (Judicial Review) Act 1977, as

amended, "the Judicial Review Act". In each application the

person making the declaration, together with the persons *

comprising the Board of Commissioners, "the Public Service

Board", constituted under the Act, were named as respondents.

Each application is brought under s.5(1) of the Judicial

Review Act and reliance is placed upon the grounds 'specified

in paragraphs 5(1)(b), (d) and (f). In each application, an order is sought extending the time in which the application may be made to 22 June 1982. The respondents to each application have filed a natice of objection to competency on the grounds that the application had not been lodged within

the time prescribed by s.1l of the Judicial Review Act or

within such further time as the Court has allowed, Order 54, rule 4, Federal Court Rules. In each application the applicants have given notice of motion seeking an order that the time within which the application may be lodged be

Each of the applications is before the Court for directions and the motions and the objections to competency came on for hearing before the Court at the same time. With the consent of the parties the motions and the objections to

competency were heard together before directions being given.

Counsel for the respondents raised a preliminary objection, namely that the Court had no power .to extend the time for lodging the applications after the applications had been lodged. He conceded, correctly in my opinion, that if this objection was upheld, there would be nothing to prevent prospective applicants from seeking an extension of time in which to lodge applications arising from the same circumstances. After hearing submissions the Court ruled

that it had the power to extend the time, but would publish

who is aggrieved by a decision to which that Act applies may apply to the Court for an order of review in respect of that decision on any one or more of the grounds specified in that sub-section. Under '3.8, the Court has jurisdiction to hear and determine applications made to, the Court under the

Judicial Review Act, see also s.19 Federal Court of Australia

Act 1976, as amended. The relevant parts of s.11 of the

"11.(¢1) An application to the Court for an order of review -

(a) shall be made in such manner as is prescribed by Rules of Court;

(b) shall set out the grounds of the application; and

• (ce) shall be lodged with a Registry of the Court and ... shall be so lodged within the prescribed period or wathin such

further time as the Court (whether before or after the expiration of the prescribed period) allows.

(3) The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision is

out the terms of the decision 18 furnished to the applicant; ..."

"In the present applications the latest prescribed period ended on 23 December 1981. Each application was lodged on 22 June 1982 before the Court had allowed any

further time within which each application could be lodged.

The only source of power enabling the Court to extend the time within which an application under s.5 of the Judicial Review Act shall be lodged is that contained in s.l1(1)(c) of that Act. The prescribed period is not fixed

by the Rules of the Federal Court or by any judgment or order, and thus Order 3, rule 3 of the Rules has no

The substance of the contentions of counsel for the respondents was that the requirements of s.11(1)(a) and (c) were mandatory and he stressed the words that the application "shall be lodged" within the prescribed period. He contended that where the prescribed period had expired in the absence of a further time having been allowed by the Court, a person was not entitled to lodge an application and any application wrongly lodged could not be validated by an. order of the Court having retrospective effect. In this regard he relied also on the words "whether before or after the expiration of the prescribed period" in s.11(1)(c) as indicating that the extension of time must have been granted before the application was lodged since no extension would be required to lodge an application before the expiration of the prescribed period. In my opinion those words do not assist the contentions of counsel. They are included in the section to make it clear that the power to allow further time does not lapse once the prescribed period has expired. The

problem that has been overcome by the use of those words is

well illustrated by the following passage from the judgment

of Fullagar J. im Esso Research and Engineering Company v.

Commissioner of Patents (1960) 102 C.L.R. 347 at p.351l:

"I think I would concede that a provision for 'extending' a prescribed period during which a

• thing may be done should prima facie be construed as operating only while the originally prescribed period is still current. It may be said that, when the originally

prescribed period has expired, there is nothing to 'extend'. But, while this view may be said to represent the most natural meaning of the word 'extend', that word is by no means incapable of a wider reference. It is by no means a misuse of language to speak of what 1s really the prescription of a new period as an 'extension' of the period originally prescribed. Cases are numerous in which the conferring on a tribunal of a power to 'extend' the time for doing a thing is accompanied by an express provision that an 'extension' may be granted although the originally prescribed period has expired. An example ready to hand is s.160 of the Patents Act, sub-s. (2) of which says that 'the time Tequired for doing an act ... may be extended under this section although that time has expired'. While these cases suggest that a power to extend time without more is prima facie to be regarded as a power to extend a period still current, they also indicate that ts an enlargement of time after the expiration of

In support of his primary contention counsel relied on decisions of the Supreme Court of Victoria involving the

application of State Acts. Section 5(6) of the Limitation of

Actions Act 1958 (Vic.) provides that no action for damages

for negligence where the damages claimed include damages in respect of personal injury to any person shall be brought after the expiration of three years after the cause of action accrued. Section 23A of that Act contains provisions empowering a court to order the period within which an action or the cause of action may be brought to be extended provided the claimant can establish certain facts. The section contains provisions prescribing the method by which an

application for an extension of time is to be made on notice

to the persons against whom the claimant claims to have the cause of action. Little J. in Tung v. Augustine [1973] V.R. 616 held that an order could not be made with respect to an action already commenced and which was barred by s.5(6). A

similar result is allustrated by Beugelaar v. City of

Government Act [1958] as then in operation, was under

consideration. It provided that certain types of action against municipalities may be brought in the County Court and that such an action "shall not be brought in the Supreme Court" except where a Judge of the Supreme Court on the application of either party ordered that the action "be brought in the Supreme Court, or if already commenced, be transferred to the Supreme Court", Starke J. held that that section did not empower a Judge of the Supreme Court to so order where an action had been commenced in the Supreme Court without prior order. A consideration of these two cases, together with a consideration of the many authorities cited in them, illustrates that the relevant statutory provisions

being considered in those authorities related to future

proceedings. This is best illustrated by an extract from the

judgment of Little J. in Tung v. Augustine. After referring

to a contention made on behalf of the plaintiff that whilst

the action already commenced could be defeated by s.5(6) of

the Limitation of Actians Act, the writ was not a nullity and

an order could in law be subsequently made under s.23A which

would operate retrospectively and deprive the defendant of

such a defence in that action, his Honour said at p.624:

"This contention, in my opinion, is unsound and fails to take into account the whole

action which accrued before the Act came into

• operation (vide sub-section (1)) it does not contain a provision empowering the court to make an order having a= retrospective operation. Section 23A is not directed to an action already commenced or to nullifying in an existing action a plea made under s.5(6). The section enacts a procedure which enables a claimant to make application to a court to obtain an order extending the time within which he may commence an action. The power given to the court on an application under the section is to order that the period within which an action may be brought be extended. The language is language of futurity. It contemplates an action to be commenced in the

future and commenced pursuant to an order made under that section."

In this respect, the language of s.11(1) (ce) Judicial Review Act is not that of futurity. The language is not to be equated with a statute of limitations barring an action except where a court extends the time within which the action may be commenced. The section imposes a procedural requirement with respect to the time in which the application under s.5 is to be lodged. The lodging of an application after the expiration of that prescribed period does not make the application a nullity. The provision is not in the nature of a defence that can be raised by a respondent. The section confers an unfettered discretion upon the Court to allow further time within which the application may be

lodged. It does not prescribe the method by which an

application for further time is to be made nor does it -contain provisions stating that notice must be given to prospective respondents before any such application is made. It does not prescribe the method by which a prospective applicant under s.5 must first obtain an order for extension

of time before the application is lodged under s.11. In my

opinion the Court has power to make an order under s.11{1)(c) extending time for the lodging of an application under s.1l, even though that application had been lodged after the expiration of the prescribed period. See also Streimer v.

the Court. This practice is illustrated by Doyle v. The

Chief of the General Staff, Fasher J., 8 July 1982,

. Thus it is necessary for the Court to exercise the discretion conferred by s.11(1)(c) of the Judicial Review Act. That discretion is unfettered, but it must be exercised judicially on relevant facts. None of the applicants has given evidence either orally or by affidavit explaining the

long delay ain the lodging of the applications or of lack of

knowledge of the provisions of the Judicial Review Act or

even when instructions were given to solicitors to make the applications. In each case an affidavit has been filed by

Mr. Bunn, the Secretary of the Victorian Branch of the

Association. In that affidavit he states that he is "authorized to make the affidavit on behalf of the Association, although it is difficult to see the relevance of

that fact. Under the Judicial Review Act, the Association

organizations under the Conciliation and Arbitration Act as

illustrated, for example, by R. v. Dunlop Rubber Australia

Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 C.L.R. 71. The Judicial Review Act confers rights and privileges upon persons aggrieved by decisions under that Act. The applicants claim to be such persons.'+ The Association is not. It is not a party to any of the applications. It is the position of the applicants in seeking an indulgence of the Court which is of importance, but those persons have given no evidence to the Court. During the course of submissions attention was drawn to those apparent defeets in the material presented to the Court, but counsel for the applicants made no application for an adjournment to allow further material to be presented. Accordingly, the motions must be decided upon the material

applications which set aut the grounds of each application

and have annexed to them the respective declarations under

8.32A of the Act, the affidavit by Mr. Bunn and an affidavit

in each application by the officer of the Service giving the

relevant declaration. In substance, the material discloses

that the bans had been imposed by members of the Association. Arising from the giving of some ninety declarations the Association forwarded to its members forms to be completed in relation to those declarations. The forms were slow in being returned to the Association and thereafter they were processed by officers of the Association. Difficulties arose concerning liaison and co-ordination between Victorian Branch

officers and Federal officers of the Association. Mr. Bunn

first became aware of the tame limits contained in s.1l

Judicial Review Act in late February 1982. On 21 April 1982

a conference was" held between officers of the Victorian Branch and the Branch's legal advisers, presumably solicitors. On 18 June 1982, Federal officers gave approval in relation to applications being lodged. These were then lodged on 22 June 1982. Mr. Bunn states that from late April 1982 until the issue of the applications much time was spent by the legal advisers of the Association in considering the information which had been supplied by members of the

The substance of the facts deposed to on behalf of the respondents is that the dispute involving the bans on work had been long-standing and "divisive within the Department and had led to breakdowns in friendships, distrust and disharmony which had a direct and detrimental effect on

personal and working relationships. It was believed that

since the bans had been lifted in December 1981 the detrimental effects had lessened but that the present proceedings could lead to the renewal of ill-feeling and distrust. In addition, the respondent, Ross Duff, in application V.G. No. 79 of 1982 had lost his diary which contained records associated with the declarations made by

him and that, because of the lapse of time any evidence he

may be required to give, would thereby be affected adversely.

As has been said, the discretion conferred by s.l1(1)(c) of the Judicial Review Act 18 unfettered. Nevertheless, s.11 contains mandatory provisions prescribing periods within which applications are to be lodged. The Court must have regard to those provisions. At the same time, although there is much force in the views expressed in the respondents! affidavits, I do not consider that that material constitutes prejudice sufficient to justify the

refusal to make an order granting further time if otherwise

"As there is no evidence of any prejudice to the respondent or any other person caused by the delay and it can not be said that Major Doyle rested on his rights, I do not see this as a sound ground for refusing his application. As Bray C€.J3. said in Lovett v. Le Gall (1975) 10 S.A.S.R. 479 at p.485;

'If the defendant has suffered no prejudice, as when he was well aware within the limitation period of the Plaintiff's claim, or where the excess period of time is small, or where he cannot show that he has

lost anything by reason of the delay, it may well be that the court will not find it difficult to come

. to the conclusion that it is fair and equitable in the ecaircumstances to grant the extension.' "

In the present cases I am not satisfied that the applicants have explained in any satisfactory manner the delay in lodging the applications. None of them has given evidence. If the+knowledge of Mr. Sunn is relevant, he had

knowledge. cf the provisions of s.11(1)(c) of the Judicial

Review Act in February 1982, but the applications were not

lodged until 22 June 1982, some four months thereafter. It is to be noted that prior to that latter date no application, whether ex parte or on notice, had been made for an extension of time in which to lodge applications. It is well established that delays by a solicitor are visited upon the client when those delays are relevant to limitation periods or matters involving want of prosecution. At the very least, the delays of the Association must be considered to be the delays of the applicants. I have had no regard to the strength or weakness of the substantive claims made by the applicants since, in my opinion, that is not relevant to the exercise of my discretion. In any event, no submissions were

In all the circumstances I am not persuaded to exercise my discretion in favour of the applicants. This decision, however, does not necessarily prevent fresh applications being made on fresh material.

application: . -

1. The hearing of the objection to competency is adjourned to a date to be fixed. ty 41 '
2. The motion for further time within which to lodge the

3. The directions hearing is adjourned to a date to be fixed. ~
4. Costs of the objection to competency and of the motion

a I certify that this and the cthieteesa 5) ! pisceding pages are a true copy of the ! epson for Judgment herein of the Wonourable Mr. justice Nectheep . ~ Meh Moar |