The first defendant opposes the extension of time. Reference was made by Ms Anniwell of counsel at paragraphs [18] to [20] of her written submissions to the approach to be taken to such an application:
"The granting of an extension of time where a limitation period is otherwise imposed operates as an exception to the position that should pertain, namely adherence to the limitation period (Brisbane South Regional Health v Taylor (1996) 186 CLR 541 at 544 and 553-554). In Regional Express Holdings Limited v Dubbo City Council (No 2) [2013] NSWLEC 113, Biscoe J (at [7]-[10]) considered the historical context and rationale behind r 59.10 of the UCPR and made the following observations (at [7]):
A judicial review court is concerned with maintenance of the rule of law in the conduct of public authorities, but the rule of law is strengthened by provisions such as r 59.10 requiring the discipline of bringing proceedings within a reasonable time so that the proper business of government and the reasonable interests of third parties are not unjustly prejudiced. In considering whether to extend time, the factors listed in r 59.10(3) are not exhaustive. The weight to be given to relevant factors will depend on the circumstances of the particular case and may require the court to carry out a balancing exercise. As regards the factor referred to in r 59.10(3)(c), a claimant cannot fairly be criticised for failing to take action before he knew or, by exercising reasonable diligence, should have known that there was anything to take action about.
In Dyason v Butterworth [2015] NSWCA 52, McColl JA observed (at [65]), with whom Barrett and Gleeson JJA agreed) that in addition to the factors to be considered pursuant to r 59.10(3), other factors include the length of the delay, the reason for the delay and whether the applicant has a fairly arguable case.
The plaintiff bears the responsibility to establish his entitlement to an extension of time by reason of the delay and to justify that delay as warranting the extension sought (Australia Skydive Pty Ltd v Wyong Shire Council [2014] NSWLEC 185 at [15])."
The matter requires the Court to take into account a number of relevant factors including those listed in r 59.10(3). The first defendant accepts, in relation to any particular interest of the plaintiff in challenging the decision, that he clearly has an interest in seeking to "clear his name": r 59.10(3)(a).
In relation to possible prejudice to other persons caused by the passage of time, if the relief were to be granted (r 59.10(3)(b)), it was asserted that there were three ways in which relevant prejudice could arise.
Firstly, in relation to prejudice to the first defendant in defending the summons in this court, it is pointed out that the evidence shows that the first defendant's files in relation to the Local Court proceedings are incomplete and that a good part of them have been destroyed. Primarily what has been retained is the internal file note of the prosecutor as to what occurred on 7 November 2005. There is no transcript of the proceedings on 11 October or 7 November 2005, and the audio recording of the proceedings has since been destroyed in accordance with standard record retention practices in the Local Court. So it was submitted that the first defendant is unable to test the applicant's assertions as to what did or did not occur on those two dates in the Local Court. (It is also difficult to see how the applicant could make good his assertions of jurisdictional error in the absence of a transcript.)
The CDPP solicitor who appeared on those occasions is no longer employed by that office. And, although he has been spoken to, he has no recollection of what occurred beyond what is indicated in the file note.
Secondly, in relation to prejudice to the first defendant if the orders sought in the summons were granted, it was contended that it would require the first defendant to have a brief of evidence and witnesses. However, the brief has been destroyed and there is no electronic copy retained. The informant, that is the investigator, Mr Kearns, is now deceased; the complainant in relation to the fifth charge and another witness, a former Australian Border Force officer, cannot be located; and two civilian witnesses have left the country.
I note, however, that the applicant has filed in this court a large bundle of transcript of proceedings that were before the magistrate leading up to his initial dismissal of the proceedings in mid-2004. So whether any further evidence would be required or whether the proceedings would be confined to submissions based upon the evidence already given is moot.
Thirdly, the first defendant submits there would be prejudice to the public because there would be the removal of certainty that attends the making of a decision in the absence of any challenge within the three-month limitation period. Reference was made in that respect to Australia Skydive Pty Limited v Wyong Shire Council [2014] NSWLEC 185 at [14]-[15].
In relation to the time at which the applicant became, or by exercising reasonable diligence should have become, aware of the decision under challenge (r 59.10(3)(c)), reference is made to the applicant's claim that he first became aware of his having been convicted in his absence when he received the letter from the AFP on 3 February 2014. The first defendant, however, asserts that the applicant was aware, or by exercising reasonable diligence he should have become aware, on or around February 2006; that is when he should have received an enforcement order from the SDRO.
In the alternative, it was submitted that he was aware, or should have been aware, in or around April 2011 when correspondence was entered into between the applicant and the SDRO. Such correspondence is summarised in paragraph [38] of Ms Anniwell's written submissions:
"In the alternative, the first defendant submits that the plaintiff became aware or should have become aware of fines imposed by LCM Reiss that accompanied the convictions on or around April 2011. The first defendant relies on the following evidence from which such a finding may be inferred:
On 20 April 2011, the SDRO wrote to plaintiff to advise that it had reviewed his application to write off outstanding fines and was unable to do so.
On 27 April 2011, the SDRO wrote to the plaintiff allowing him further time to pay his outstanding enforcement orders, including Enforcement Order No. 256024133.
On 24 May 2011, the Fines Hardship Review Board wrote to the plaintiff about his application to review a decision made by the SDRO's to decline to write off his outstanding fines.
On 16 June 2011, the Fines Hardship Review Board wrote to the plaintiff to advise that it had also declined to write off the fines. The SDRO was directed to allow the plaintiff time to pay the fines with fortnightly instalments of $10.00.
On 27 April 2012, the plaintiff called the SDRO and requested a Centre pay arrangement for Enforcement Order No. 256024133. On the same date, the SDRO wrote to the plaintiff allowing him further time to pay in relation to an outstanding amount in the sum of $5,445.00 for enforcement order 256024133."
Finally, it was submitted that even if the applicant only became aware, as he claims, in February 2014 there was still a substantial delay until he filed the summons in this court on 18 August 2015.
It was noted that the applicant made representations to the Commonwealth Attorney-General under s 5 of the Crimes (Appeal and Review) Act but he still was tardy in the extreme in taking steps to commence judicial review proceedings.
The final matter suggested for consideration is "any relevant public interest" (r 59.10(3)(d)). The written submissions by counsel for the first defendant refer to the decision of McCallum J in Kuzet v the Registrar of the Workers Compensation Commission [2015] NSWSC 4 at [14] which is to the effect that in a case such as this, it is not determinative.
Other matters that are relevant to the consideration of the application for an extension of time include the length and reason for the delay. It was contended that the period of nine years and six months by which the filing of the summons is out of time is not supported by any reasonable explanation.
Another matter is whether the applicant has a fairly arguable case. It was submitted that it is difficult to determine that issue when there is a lack of evidence as to what occurred in October and November 2005, and that lack of evidence is attributable to the lapse of time. It was contended that nonetheless it can be said that the applicant was present on 11 October 2005 when the matter was adjourned to 7 November 2005, and it should be inferred that he was thereby aware of the adjournment to the second date.
It was also submitted that the fact that the prosecutor was obviously aware of the adjourned date, evidenced by his appearance on that date, supports the inference that the applicant must have been as well.
Dealing with the five grounds raised in the summons briefly, it was submitted by Ms Anniwell that the first two grounds lacked merit because there was no requirement for the Local Court to "notify" the applicant of the adjourned date because he was present when the adjournment was announced in the Local Court. As to grounds 3 to 5, it was submitted that it is impossible to make an assessment without the evidence of the Local Court proceedings and the reasons of the magistrate.
The applicant has submitted today that it should be regarded as inexplicable that he would not appear on 7 November 2005 if he had known the date. He asserts that he has a history of appearing in court and the volume of transcript that he has provided of the substantive hearing of the proceedings in 2002 to the end of 2003, and finally on a mention of the matter on 30 January 2004, well illustrates his history of appearing when required. Two occasions of not appearing in court referred to in the submissions and the evidence for the first defendant should be characterised as inconsequential. One occasion concerned the hearing of a costs application that he conceded would be made in his absence, and the other occasion was a date that a judgment was to be handed down in the Court of Appeal. There is some force in the applicant's submission in this respect. However, the question is whether judicial review should be permitted now after such a long delay with all of the consequential prejudice that has been outlined in the submissions for the first defendant.
Another matter that I think should be borne in mind is the nature of the proceedings and the gravity of the offences which are their subject. These were proceedings for summary disposition in a magistrate's court which resulted in the imposition of fines. Having regard to that, I am inclined to the view that the applicant was probably aware of the matter having been dealt with in his absence around early 2006, but I am not totally convinced of that. What does trouble me, however, is that I find it implausible that he would do nothing about following up what had happened to the proceedings for such an inordinate period of time. I find it very difficult to accept his evidence that he thought the proceedings had simply gone away by having been discontinued. In light of the history of the proceedings, that seems most improbable.
I think it is likely, if he was not aware in early 2006 of what had occurred in November 2005, he was probably aware in April 2011 when he engaged in correspondence with the SDRO in relation to arrangements to pay the fines. But even if he wasn't aware then, he concedes he was aware in February 2014 yet still allowed some 18 months to elapse before instituting proceedings in this court.
In my view, the delay is just too great. It is not sufficiently explained and cannot be lightly excused. The prejudice is too severe in allowing judicial review of a Local Court matter that was finalised over 10 years ago, when most of the records of the court and those of the prosecutor have been lost, simply as a result of events which are expected to occur as a result of the passage of time. I am firmly of the view that the application should not be granted. The application is refused and, as a consequence, the summons is dismissed.
Costs should follow the event. I see no reason that they should not in this case, and the applicant has not advanced any reason why they should not.
The applicant is ordered to pay the costs of the first defendant as agreed or assessed.
[2]
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Decision last updated: 24 March 2016
On 4 July 2002 an investigator with the then Department of Immigration, Multicultural and Indigenous Affairs, Mr Geoffrey Kearns, laid informations and caused summonses to be issued out of the Local Court, for a number of offences against the Migration Act 1958 (Cth) alleged to have been committed by the applicant in the period August 1999 to July 2000. There were two offences that were alleged of the applicant providing migration assistance to a person when he was not a migration agent; two offences of receiving fees for giving immigration assistance when he was not a migration agent; and one offence of representing himself as a registered migration agent when he was not.
The summonses were served upon the applicant on 19 July 2002 and the first return date was 2 August 2002. There followed defended proceedings before a Local Court magistrate that extended over a very long period of time.
In the meantime, on 2 September 2002, the applicant was convicted by another magistrate for an offence of advertising when he was not a registered migration agent and he was fined and ordered to pay court costs. He subsequently appealed to the District Court but the appeal was dismissed and the conviction confirmed. He also brought proceedings in the Court of Appeal in which he was unsuccessful: see Hanna v DIMIA [2004] NSWCA 275.
Ultimately, the proceedings in respect of the five charges the subject of the informations laid on 4 July 2002 were dismissed by a magistrate on 15 June 2004. The prosecutor challenged the dismissal of the proceedings in the Common Law Division of this Court. On 29 July 2005 Kirby J set aside the orders and remitted the matter to the Local Court for further hearing according to law: DPP (Cth) v Hanna & Anor [2005] NSWSC 761.
The matter was first relisted in the Local Court on 8 September 2005. On that occasion there was no appearance by the applicant and the proceedings were adjourned to 11 October 2005. The Local Court wrote to the applicant by letter dated 8 September 2005, advising him of the adjourned date, informing him that the matter was listed on that date for "mention part-heard" and included the advice that:
"The matter MAY be determined in your absence on the next occasion so you should ensure that either you, or your legal representative, appear on that day. If you cannot attend, you should telephone the court office BEFORE 9.30am on the adjourned date."
The applicant agreed in his evidence today that he received that letter and understood it.
On 11 October 2005, the magistrate's bench sheets record that the prosecutor appeared and that the applicant appeared in person unrepresented. The bench sheets record that the matter was adjourned to 7 November 2005 for "m or submissions", which I take to mean for mention or submissions. It was noted that the magistrate was part-heard in the matter. I interpolate that he was the magistrate who had heard and determined the proceedings that were the subject of the appeal to Kirby J. The notations continue, and I interpret them to mean that the defendant was excused "if appeal filed and confirmed", and there is a further notation "also prosecutor excused".
When the matter came before the court again on 7 November 2005, according to the magistrate's bench sheet, there was no appearance by the applicant. Interpreting the shorthand expressions in the bench sheet, I divine that there was reference to the DPP doing something in relation to the filing of an appeal and that at 2pm there was still no appearance of the applicant. There was a note to the effect that the DPP was unable to locate any confirmation of an appeal being filed, and then there was a note to the effect that the magistrate proceeded pursuant to s 196 of the Criminal Procedure Act 1986 and dealt with the matter in the absence of the applicant. He dismissed two of the charges that were before him but recorded convictions in respect of the other three. He imposed fines totalling $5,200 plus, in each case, costs of $65, such that the total monetary imposition was $5,395. The applicant was also ordered in one of the cases to pay reparation in the sum of $8,000.
The applicant has given evidence today that when he appeared in court on 11 October 2005 the magistrate made some reference to him having other matters proceeding in the Supreme Court. His Honour indicated and informed the applicant that when those matters were finalised, the proceedings in the Local Court would then go forward. The applicant was pressed by counsel for the first defendant as to his recollection of what occurred on 11 October. He conceded that it was possible that the magistrate did say that the matter was being adjourned to 7 November 2005 and that he just simply did not remember it. But I think it is also fair to say that the applicant doubted that was the case and his recollection was that he was given to understand that the magistrate had said something to the effect that the matter would be adjourned to a date to be fixed.
For reasons I will come to later, the records of what in fact occurred are incomplete.
In an affidavit of Stephen Grodzicki sworn 10 February 2016, there is annexed an internal file note apparently completed by the Commonwealth DPP solicitor who appeared in the Local Court on 7 November 2005. It indicates that at 10.20am the matter was mentioned and that the prosecutor handed up to the magistrate a fax that had been received from the applicant on the previous Friday, indicating that he was filing an appeal that day to the Court of Appeal. The prosecutor confirmed to the court that no such appeal had been filed with either the Court of Criminal Appeal or the Court of Appeal registries in the Supreme Court when the prosecutor had checked on Friday afternoon and at 9.45am on Monday, 7 November. It was the prosecutor's suggestion that the matter be stood down to allow further enquiry to be made, and the magistrate stood the matter down until 2pm.
The note continues to refer to telephone enquiries being made at 11.30am and 1.50pm with the Court of Appeal registry. On both occasions it was indicated that no appeal had been filed. At 2.00pm the matter came back before the magistrate and the prosecutor informed his Honour that the further enquiries confirmed that no appeal had been filed. It was the prosecutor's application that the matter should be finalised in the absence of the applicant. Some authority and extracts of legislation were handed up. Submissions were made as to how the magistrate might dispose of the matters. Ultimately, his Honour dismissed two of the charges and convicted in respect of three of them. I interpolate that this would indicated that the magistrate addressed the sufficiency of the evidence to prove the offences beyond reasonable doubt. The file note continues with details of the sentences that were imposed and some notes of matters said by the magistrate in providing reasons for those sentences.
The applicant maintained that he was not aware of the listing on 7 November 2005. He was not notified of that listing. He maintained that he could have been contacted by telephone because he had provided his telephone number to the magistrate, as is apparent from a transcript of proceedings before the same magistrate on 30 January 2004. (Whether anyone took note of it and had that information to hand on 7 November 2005 is not apparent and I think it would be unlikely.)
The next thing that occurred was that the State Debt Recovery Office ("SDRO") became involved in attempts to recover the fines and costs which had remained unpaid. An enforcement order was issued and sent to what was thought to be the applicant's address on 26 January 2006 but it was returned to sender. The evidence before me is to the effect that a further copy of the enforcement order was sent to another address in Carlingford on 21 February 2006. That address was said to be based upon information derived from "business records held by SDR". The applicant maintained in his evidence today that he has never lived at Carlingford, let alone at that particular address. He claims not to have received the enforcement orders.
In April 2011 and thereafter there was correspondence between the applicant and the SDRO, in the course of which he sought to be excused from payment through hardship. While that request was refused, he did manage to persuade the SDRO to agree to a payment plan. The correspondence that is before me does not specify that the amount due related to convictions entered in the Local Court on 7 November 2005. There is reference, however, to an enforcement order number and there is in at least one of the documents a correspondence between the amount said to be due and the amount of the fine and court costs imposed on that occasion.
The applicant maintained in his evidence that he did not read the documents that he received from the SDRO and did not understand that they related to fines imposed for Migration Act offences. He said that he thought he was being chased by the SDRO in respect of unpaid traffic fines and court costs that had been ordered against him that were due to the Commonwealth DPP. Why he thought the SDRO would be trying to recover court costs which were due to the Commonwealth DPP is not apparent.
I make the observation at this point that the first defendant's counsel submits that it is implausible that the applicant would not have made further enquiry to gain an understanding as to why the SDRO was chasing him for a substantial amount of money. This is unless he was already aware that it related to fines that had been imposed upon him in his absence, which he ought to have been aware of because he had received at least one enforcement order specifying so.
The next relevant event occurred on 3 February 2014 when the applicant was sent a letter from the Australian Federal Police, which was as a result of some criminal background check being carried out because he was seeking employment with the Commonwealth Government as an interpreter. The letter set out convictions that had been recorded against the applicant for Migration Act offences, including the three that had been recorded in the Local Court on 7 November 2005. The applicant claimed: "I was extremely shocked to learn that convictions had been recorded against my name." He went on in his affidavit to say:
"As the matter was about eight years old and was out of time for any appeal against the convictions, my solicitor replied to the Minister of Justice, Attorney-General's Department, Criminal Justice Division for annulment of the convictions or sentences under s 5 of the Crimes (Appeal and Review) Act 2001 (NSW)."
The applicant was challenged in cross-examination about his inactivity in following up on what had occurred in relation to his prosecution in the Local Court insofar as he claimed that he had heard nothing about it since he appeared in court on 11 October 2005. The applicant explained that he thought that the proceedings must have been discontinued. He otherwise complains about the vigour with which the prosecutor had pursued him in respect of these charges, and so for him to think that the prosecutor would have simply discontinued the proceedings appears rather odd.
On 17 December 2014 (10 months after the applicant says he became aware of the convictions) a solicitor acting for the applicant wrote to the Commonwealth Attorney-General, seeking that the matter be referred to the Local Court because there was a question or doubt as to the applicant's guilt: see s 5 Crimes (Appeal and Review) Act 2001 (NSW).
On 11 May 2015 there was a reply from the Attorney-General's Department to the effect that the Minister had refused to refer the case back to the Local Court. Some three months later, on 18 August 2015 the summons was filed in this Court seeking judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW).