Hunter Valley Developments Pty Ltd & Ors v The Hon Barry Cohen, Minister for Home Affairs and Environment [1984] FCA 186

of reasons was not pressed and he confined the matter to an

application for extension of time. The jurisdiction of the Court to aqrant such an extension, even after the time limited by s.11(3) nas expired, was examined by Northrop J in Duff v Frerjahn (1982) 43 ALR 479 at pp 481-493. That jurisdiction

has been exercised in a number of subsequent cases and Mr

Bennett, QC. for the responaent, did not contest the power of

the Court to grant the application for extension of time. Mr Bennett did submit that the applicants had not made out a case for an extension of time and, accordingly, that their

The applicants are persons concerned with the making of a feature film which was originally given the working title of "Huck and Jim" but which was more recently re-titled "On the Run". The producer of the film was the third applicant Mr Mende Brown. He is also a director of Pigelu Pty Limited which acted as the production company in relation to the film.

Developments Pty Limited, the major investor in the film, acted as Executive Producer of the film. The second applicant. Mr A N Walker, is a practising solicitor who acted

In November, 1981 Mr Brown submitted to the Department of Home Affairs and Environment an application for a Provisional Certificate, pursuant to s.124ZAB of the Income Tax Assessment Act. Thereafter, there was considerable correspondence between Mr Brown and the Department. upon the question whether the proposed film was one in relation to which the Minister couid be satisfied that. when completed, it would be a "qualifying Australian film". The critical question was whether the film would have a "significant Australian content": see the definitions in s.124ZAA of the Act. In the result, the Minister indicated that he was not so

satisfied and no provisional certificate was ever granted.

Notwithstanding this position the producers decided to proceed with the production of the fiim, taxing the view that they would be likeiy to persuade the Minister that the completed film quaiifiea for a Final Certificate pursuant to s.124ZAC. The issue of the Final Certificate 1s, under the scheme of Division iOBA of the Act, the critical event in terms of tax benefits. The shooting of the film commenced at the beginning of March, 1982. Production was completed about

Early in June, 1982, in anticipation of the completion of the fiim, the producers engaged the services of Marsden Management Pty Limited, a management consultant company controlled by Mr J M Mason. Mr J M Mason's brother, Mr R K Mason, 18 a well known film producer and his services were enlisted in the application for a Final Certificate. Messrs Mason attended a meeting with officers of the Department in Canberra on 8 July, 1982. Thereafter there was some correspondence regarding the unformation which the Department would require in order to advise the Minister in relation to a Final Certificate and Mr Brown took the opeertunity of setting out reasons why the Minister should take the view that the film, as compieted, had a significant

Australian content. The formal lication for a Final

Certificate was lodged with the Se vy of the Department

about 15 November, 1982. On 31 December, i982 the then Minister, the Hon. D T McVeigh, wrote to Mr Brown a letter in tne followirg terms:

"T refer to your application dated 15 November 1982 seeking a final certificate for the film entitled "On the Run" as a qualifying Australian film under section 124ZAC of the Income Tax Assessment Act 1936.

I note that Mr Wilson, then Minister for Home Affairs and Environment, wrote to you on 30 December 1981 stating that he was unable to

determine that the proposed film would have a significant Australian content. At that time

under section 124ZAB of the Act. Mr Wilson confirmed this view in further letters to you of

I have considered carefully your application for a final certificate for this film and, having regard to all the information before me, I am unable to satisfy myself that the film "On the Run" has a significant Australian content and,

therefore, in my view, the film is not a qualifyina Australian film."

This letter constitutes the first of the two decisions in relation to which the applicants seek review pursuant to s.5 of che Administrative Decisions (Judicial

The applicants had been aware, before the receipt of tne Minzster's letter, of the availability to them of the Administrative Decisions (Judicial Review) Act as a means to challenge a legally erroneous decision of the Minister in relation to certification. in his affidavit Mr Walker referred to the receipt from counsei 1n April 1982 of written advice as to the availability of the Act in respect of the Minister's decision not to grant a Provisional Certificate.

Notwithstanding this knowledge, no immediate action was taken either to request reasons or to seek review of the decision set out in the letter of 31 December 1982. The reason. according to Mr Anderson, was that he was aware of continuing contact between Messrs Mason and the Department and

that the Messrs Mason were arranging a conference with the

Minister to be held in February. That conference was held on 10 February 1983. It was attended by Mr Anderson. Mr J M Mason and Mr R K Mason. There was, apparently, a fairly detailed discussion about the content of the film and this concluded with the Minister indicating that the decision would be reviewed. On 11 February 1983 Mr R K Mason wrote to the Minister setting out information reqarding the film,

The Minister did, apparently, further review the matter but he dia not change his mind. On about 22 February 1983 he forwarded a telex to Mr R k Mason in the following terms:

I REFER TO OUR MEETING OF 10 FEBRUARY AND YOUR LETTER OF 11 FEBRUARY 1983 CONCERNING THE ABOVE FILM APPLICATION. OVER THE WEEKEND I HAD THE

OPPORTUNITY TO VIEW THE FILM AND REVIEW THE APPLICATION FOR FINAL CERTIFICATION.

AFTER DUE CONSIDERATION, I REMAIN UNABLE TO SATISFY MYSELF THAT THE FILM IS A QUALIFYING AUSTRALIAN FILM UNDER DIVISION 10BA OF THE INCOME TAX ASSESSMENT ACT 1936. 2 AM STILL OF THE OPINION THAT THE NUMBER OF NON AUSTRALIAN ELEMENTS IS SUCH THAT THE FILM DOES NOT HAVE A SIGNIFICANT AUSTRALIAN CONTENT.

AS THIS FILM PROJECT HAS NOW BEEN REJECTED ON FIVE OCCASIONS - TWICE IN REGARD TO PINAL AND THREE TIMES IN REGARD TO PROVISIONAL CERTIFICATION, I REGRET TO SAY NO USEFUL PURPOSE WOULD BE GAINED FROM ANY FURTHER REVIEW.

DEPARTMENT HAS ADVISED YOU INFORMALLY OF MY DECISION. "

This was the second of the two decisions in relation

Notwithstanding the apparent finality of the Minister's conclusion, Mr Anderson retained the belief, as he put it in para 13 of his affidavit, "that if further representations were made to him he would change his mind".

Mr Anderson decided that he should "exhaust these other avenues before, instituting any proceedings in the courts to review the Minister's decision". He decided to engage another consuitant to make further representations to the Minister. There was, however. some delay in further action. Mr Anderson was distracted during March ana April by a number of other matters, including problems in relation to his business of land development, a serious illness suffered by his wife, and a& visit to Los Angeles in relation to the distribution of the film in the United States of America. For those reasons it happened that he had taken no action to engage another consultant when. at the end of April, 1983, he met the Special Minister of State, the Hon. Mick Young, at a luncheon. As a result of this introduction he had an interview with Mr Yound at his office and requested him to maxe representations on his behalf to the Hon Barry Cohen, who had by then become the

Minister for Home Affairs and Environment. Mr Young did make

representations but without avail. On about 21 June 1983 Mr Anderson received from Mr Cohen a letter setting out information regarding the scheme of the legislation and concluding:

occasions, by two different Ministers, twice in regard to the final and three times in regard to provisional certification. It has been rejected on all five occasions. My Department has advised that protracted and detailed consideration has been given to this matter already and that the film remains unacceptable for certification under the taxation provisions

The applicants do not contend that this letter constitutes a decision in relation to which they are entitled to review under s.5 of the Act. However, as a result of the letter, the producers decided to avail themselves of the Act. In mia-July 1983 Mr Walker, then a partner in the firm of solicitors, Messrs Parish Patience. instructea Mr P J Enalish, an employed solicitor with that firm, to prepare an apolication under s.13 of the Act to the Minister to supply reasons for nis decision to refuse a Final Certificate for the film. On 28 July i983 Mr Englisn forwarded to the Minister a letter in the following terms:

We advise that we act for Mr Mende Brown, the producer of the film 'On the Run'.

Certification has been rejected on previous occasions with the reason given to date that the

film lacks 'sufficient Australian content', without further explanation.

Accordingly, we enclose an application from Mr Brown for a statement by the Minister, setting out your findings on material questions of fact and giving reasons for your final decision, pursuant to the relevant provisions of the Administrative Decisions (Judicial Review) Act, as amended."

The letter enciosed a lenathy, formal document reciting the facts alleged by Mr Brown and concluding with a request to the Minister to furnish a statement in writing setting out the Minister's finding on material questions fact, referring to tne evidence or other material on which the

As I have aireaay indicated. tne applicants do not now press for an order to compe: the Minister to furnish statement under 5.13 of the Act. However, they solace some rellance on the makina of the request in Juiv 1983 as an indication to the Minister that the applicants were dissatisfied with the position and of tneir reliance upon thelr rights under the Act. Mr Cohen did become aware of the request. On 27 Auqust 1983 he wrote to Messrs Parish Patience referring to the nistorv of the matter and expressing the view

that under those circumstances he was under no obligation to

I unterpolate that, even whilst the request under s.13 was before the Minister, a further attempt had been made

to obtain a reversal of the Minister s decision. Whiist on

holiday in Fiji in July Mr Anderson had met a Mr Stephen Carney, a government relations consultant carrying on business un Canberra. On 9 August 1983 he and Mr Walker conferred with Mr Carney and commissioned him "to do whatever he could to persuade the Minister to issue a finai certificate". Mr Carney did have discussions wita officers of the Department but to no avail. On 25 August i983 he forwarded to Mr Anderson a telex in which he expressed the opinion that the prospect of gaining a certificate for the film "appears to he practically nil". He went on to add some comments about the reauest for reasons pursuant to s.13 of the Act, then under

After the recerpt of Mr Cohen s letter declining to furnish further reasons, Mr Anaerson decided to seek advice

from counsel as to the likelinood of succeeding in an

aptizcarion to review the Minister's decision. For various reasons tTonsiderable delay occurred, with the result that it

was moet until 17 November 1983 that firm advice was received as a result of which the applicant decided to file the voresent application. Even then, there was further delay. The application was not fiied until 29 December 1983 and. because of some misunderstanding by Mr English, 1t was not served

Section 11 of the Administrative Decisions (Judicial

Review) Act does not set out any criteria by reference to

which the Court's decision to extend time for an appiication for review under s.5 15 to be exercised. Already there have been a number of decisions of Judges of this Court, all sitting at first instance, dealing with the approach proper to be taken. They differ a little, both in language and in emphasis, but I venture to suggest that from them may be distilied the following principles to quide, not in any

exhaustive manner, the exercise of the Court's discretion:

(a) Although the section does not, in terms, olace any onus of proof upon an apylicant for extension an application has to be made. Speczal ciyvcumstances need not be

shown but the Court will not grant the avopiication unless positively satisfied that 1t 1s proper so to do. The "prescribed period" of 28 davs is not to be ignored tkalkon v

Aboriainal Development Commission (1982) 43 ALR 535 at » 550)

Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained 'Lucic v Nolan (1982) 45 ALR 411 at p 416) It is a pre-condition to the exercise of discretion in his favour that the applicant for extension snow an 'acceptable explanation of the delay' and

that it is 'fair and equitable in the circumstances" to extend

time (Duff at o 485; Chapman v Reilly, Neaves J, 9 December

(b) Action taken by the applicant. other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction 1s to be made between the case of a person who, by non-curial reans, has continued to make the decision maker aware that he contests the finality of the decision (who has

not "rested on his rights': per Fisher J in Dovle v Chief of

staff (1982) 42 ALR 283 at p» 287) and a case where the

decision maker was aliowed to believe that the matter was

finally concluded. Compare Doyle, Chapman, Ralkon and Douglas

v_ Ailen 'Morling J, 3 April 1984, not reported) at p 18 with

Eucic at op 414-415 and Hickey v_ Austraiian Telecommunications

Commission (1983) 48 ALR 517 at » 519. The reasons for this

distinction are not only the "need for finality in disputes" (see Lucic at p 410) but also the "fading from memory" problem

ceferced to in Wedesweiller vy Cole (1983) 47 ALR 5264.

(c) Any preiudice to the respondent including any prejudice in defencing tne proceedings occasioned by the delay is a material factor militating against the qrant of an extension: see Doyie at p 287, Duff at pp 484-485, Hickey at pp 525-527 and Wedesweiller at pp 533-534.

(d) kowever, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas at p 18. Lucic at p 416, Hickev at p 523. In this context, public considerations often intrude (Lucic, Hickxev). A delay which may result, if the application is successful, in the unsettling of other people (Raikon p 550, Becerra ppl2-13) or of established practices (Douglas p 19) is likely to prove

(e) The merits of the substantial application are eroperiy to be taken into account in considering whether an

extension of time shoula be granted: Lucic p 417, Chapman

if) Considerations of fairness as between the applicants and other persons otherwise ina like position are relevant to the manner of exercise of the Court s discretion:

important to bear in mind the point made by Sheppard J in

Wedesweiller at p 531, relating to the diversity of decisions

", . . there will be some cases which may be decided upon considerations which affect only the immediate parties. It will be appropriate to consider whether the delay which has taken place has been satisfactorily explained, the prejudice which may be caused to an applicant by the refusal of an application, the prejudice which may be suffered by the Government or a particular department if the apolication is granted and, generaliy, what the justice of the case requires. In other cases wider considerations wili be involved.

re went on to mention the reference to public interest

Ic is in relation to the former category of cases, ie

these 'which affect only the immediate parties' that the approach

adopted by Brav Co in Lovatt v LeGall (1575) 10 SAsr 479 at » 485

im respect of private litication b ado d in this context ain

botn Dovle act » 287 and Dutf at p 485, 18 apposite namely: 'if the defendant nas suffered no vreiudice, as when he was well within the limitation ceriod of the plaintiff's claim, or where t excess period of time 1s smali, or where he cannes show that he has lost anything by ceason of the delay, it mav Court will not find it diffacs the conclusion that it 19 fair and eqaitasie in the circumstances to grant extensicn'.

public inverest may well dictate refusal or an extension even

I now turn to an application of the principles I have summarized to the facts of this case. Mr Bennett argues that tne applicants have not made out a case for extension so as to displace th prima facie rule that an application shall be made within twenty-eight (28) days of the relevant decision.

Expressed another way, there 1s no "acceptable explanation" of the delay. The relevant decisions relied upon by the applicants were notified respectively by a letter of 31 December 1982 and a telex of 22 February 1983. In relation to the first decision the twenty-esidht (28) day period expired on 28 January 1983. At that time. arrangements were being made by Messrs Mason for a conference with the Minister in early February. It seems to me that Mr Anaesson ara his colleagues wer? iustified in decidina against Tiling any apolicatior with the Court pending the outcome of that conzerence. Such action may well have proved unnecessary ana even prejudicial to the hoidinag, or to the success, of the corference. At the conference the Minister promised a review and the apolicants were justified, 1n my opinion, in continuing to

withhold action until the Minister's decision was known.

The Minister's telex was apparently sent on 22 February 1983. Mr Anderson savs that he learnt of the content of the telex on 1 March. The period of twenty-eight (28) days in respect of this second decision expired on 22 March. During the months of March and Aprii there were no negotiations, or contact,

with the Minister (e1ther Mr McVeigh or his successor, Mr Cohen,

who took office during that period), or the Department. However, during these two months Mr Anderson was considerably involved in other matters, including a serious iliness of his wife who was hospitalised for two weeks between 4 March and 18 March and for a further period of almost four weeks between 25 April and 20 May. It 1s true, as Mr Bennett points out, that during this period there was nothing to prevent Mr Walker, who was a solicitor, filing an Application with this Court but it 1s not difficult to understand that the applicants preferred to wait until Mr Anderson, whose company was the maior investor, was able to turn

nis mind to the question and give instructions before they

Mr Anderson met Mr Young at the end of April and apparently arranged to see him in his official capacity shortly therearter. he saw Mr Young in mid-May and Mr Young promised to make representations with Mr Cohen. Once again, 1t seems to me not unreasonable for Mr Anderson to prefer an approach to the new Minister, through one of his colleagues, at that stage rather than immediately to commence litigation which might have had the result of prejudicing the outcome of the representations. Mr

I do not have any great difficulty in reaching the conclusion that, 1n respect of the period between the date of the respective decisions and 21 June 1983, the applicants have

A greater difficulty arises in relation to the period of six months which elapsed between the date of Mr Cohen's letter and the date of the filing of the present application. It took five weeks for the solicitors to write to the Minister requesting a statement of reasons under s.13. Within about one month they received an answer indicating that no further reasons would be pravided. By that date, the end of August, Mr Carney's approach was also known to have failed. There was, therefore, no discernible alternative other than to make application to the Court for a review of one or noth of tne decisions. Yet it took four months tor the application to be prepared and filed. The exslanation given reiates to the difficulties of obtainina conferences with suitable counsel. Mr Bennett nas submitted tnat tnese difficulties should be given little weight. Whilst it was understandable that the applicants should desire the advice of particular counsel having special expertise in tne area. this Gia not preclude the filing of an Application in the meantime. The Application could have been abandoned had the advice been pessimistic. Mr Bennett drew attention, by wav of analogy. toa passage in the judgement of Fitzgeraid J in Lucic at pp 417-418:

am quite unpersuaded that an absence of legal aid at anv time impeded the relatively formal step of the filing of an application which could later be expanded (s.11(6) ). Indeed, IT doubt whether the legislative intention that applications for review be considered expeditiously should be permitted to be frustrated by any deiay in obtaining a grant of legal aid, except in exceptional circumstances. It seems to me that, in general at least, it 1s for the Legai Aid

Commission to meet times fixed by statute or by the courts rather than for an absence of

legal aid to provide an excuse for non-compliance". There 15 much force in Mr Bennett's submissions. However, I think that three comments may be made. Furst, althougn the fact that a relevant failure is the fault of the solicitor for a party rather than the party himself does not in itself amount to sufficient cause to excuse the delav "the

blamelessness of the claimant and the responsibility of his

solicitor is verv material": see Sophron v The Nominal Defendant

(1957) 96 CLR 469 at p 474. It would be erroneous to treat the

fault of the solicitors as if 1t were the direct default of the

clien fin sayine this I do not overlook the fact that one of

e applicants, Mr Walker, was also acting as solicitor. if he were the only applicant then different considerations might apdoiv but this application could proceea in the name of the other two applicants, without material difference to the outcome. So there its littie point in distinquishing Mr Walxer's case. The relationship between the other two applicants and Mr Waiker, in

respect of the delay, was a relationship of ciient to solicitor.

My second comment is that even though the Minister had responded negatively to the request for a statement of reasons under 8.13 of the Act, that request must have had the effect of alerting Departmental officers to the vossibility, 1f not the likelihood, of an application for review of the decision under s.S of the Act. They knew that the applicants had, in the past,

strongly contested the various decisions to refuse certificates,

provisional or final. They were aware of the cost of production of the film. They must have been aware of the considerable

taxation implications, as far as the applicants were aware. of

obtaining a Finai Certificate. I think that 1¢ 1s most unlikely that they believed that the Minister's letter in iate July would close the matter. There 1s no evidence to suggest that the

Thirdly, the aaequacy of an explanation for delay is

intimately related to tne nature of the case. The distinction

drawn in Wedesweiller between a case which is merely

-pacties and a case invelving elements of voublic interest in

iP] iD Ww oO rs ot oa o relation to other people, ora

implications for other voceople cr for aav to day public

administration may properly be recardea as being under a heavier

plicant who 1s aware that his case has no such implications.

Not without hesitation, but having regard potn tz the nature of the relevant decisions and to tne circumstances which occasioned the delay between late Culy and December, I am of the

view that the explanation given by the apolicants should he

Mr Bannon contended that there was no evidence that the respondent would, in any way, be prejudiced by the delay in filing the Application. Indeed, he contended that the delay could only be to the advantage of the Commonwealth since it must postpone the date, should it arise, at which the applicants would be entitled to taxation relief. Mr Bennett did not contest this proposition save to refer to the undesirability, having regard to the possible future unavailability of witnesses and the frailty of human memory, of the postponement of the hearing. He did not suggest that any particular prcblem had yet arisen and there is no guch evidence. Whilst i think tnat 1t 15 1lmportant that steps ne taken to ensure the hearing of the supstantive application as

soon as possibie, I do not regard the postoonement of the hearing consequential upon the delay in commencing the proceedings as being a significant factor militating against the grant of an extension of time.

iv this case, and in contrast to most of the cases which have arisen in the Court and which predominantly involve employment or industrial decisions there 1s here no suagestion that any other person is affected, for good or 111, by the decision which has been made. The only consequence of the decisions to refuse the Final Certificate is to deny the applicants the taxation benefits which they would otherwise have cbtained. Tne only implications of the case are, therefore, the

extent of their taxation liabilities. Although the relevant

decision is a ministerial decision made under a statutory authority, this is a case very similar to inter-parties private litigation, involving no other persons. The principle enunciated

Finally, in relation to the merits of the substantive application I note that this matter was before Morling J on l June 1984 in connection with objections to the production of documents on subpoena. On that occasion counsel for the respondent indicated that his client would not oppose the application for extension of time upon the basis that there would be no merit in the substantive application, were it to be argued. Under those circumstances, I must approach the matter upon the basis that the current application is not to be treated as Tutile because of the lack of substantive merit. That negative expression, of course, reflects the fact tnat I have not attempted any evaluation of the applicants' prospect of success

in the supstantive application. should time be extended.

For the above reasons, I regard it as appropriate to qrant an extension of time for fiiing a substantive application. However, I think it 1s important to ensure that there will be expeaition in relation both to the filing and prosecution of that

application. The order I propose to make will therefore require

that any Application be filed promptly and be made returnable without delay. On the return date I propose to make directions for a tight timetable which will enable the matter to be heard at

Mr Bennett submitted that, whatever the result, his client shouid have an order for payment by the applicants of his costs of this application. In opposition, Mr Bannon mentioned two factors, neither of which I regard as persuasive. The first matter was that the various Ministers had been prepared to receive representations asking for reconsideration of the decision and that in that situation commercial people, such as tne applicants. mignt well be hesitant to bring the matter to Court. It seems to me that that submission overlooks the fact that there was a consistent course of refusal by the various Ministers and that the new discussions, at each point, occurred at the behest of the applicants and their various advisors. I do not think that a respondent is to be prejudiced in relation to casts because he 18 prepared politely to receive submissions seeking reconsideration. The second point made by Mr Bannon was that it would have been open to the respondent to consent to an order for extension and thus avoid the necessity for hearing. There may be cases where the appropriateness of an order extending time 1s so evident that 1t is unreasonable for a

respondent to resist the application. That 1s not this case.

In Wedesweiller Sheppard J made the costs of the successful application for extension of time costs in the applications for review. There were special features about that case which may have dictated that result. In the normal course

licant for extension of time under s.11 shoulia pay the costs incurred by the respondent in relation to the apolication. This is the general provision of the Federal Court Rules in relation to an application for an extension of time under tne

Fules: see 0.62r23 ana L Grollo Darwin Management Ptv Limited v

Victor Plaster Products Ptv Limited (1978) 19 ALR 621i at pp

-630 relating tc the corresysonding prevision of the High Court

a cation fer extension of time limited by the Rules anda

case, such as the vresent, in wnich the applicant seexs an

There 15 a long iine of authority to support the qeneral

rule that a successful applicant srcould oav tne costs of the respondent of an application to set aside a Gefault judgement: see Ritchie "Supreme Court Procedure NSW" vara 34,5.4 and cases

cited therein. Those authorities are based upon the fact that

the default of the applicant has occasioned the necessity for the

making of the application and that a resvondent, other than in

exceptional circumstances, should not be prejudiced in ccsts because of the apoliicant's default. The same principle applies

te this case. Had the present applicants complied with the time

requirements of s.i application would not have been necessary. The arplicant should pay the resvondent's costs of

'D @ 'Q 3B coy wa s oh) w a s c ib n'tS<4 Qo th mw ox oD ai i) » m re) ie] a m4 oO Ss a be fer, Q oa ee] ct Lo ft) 'Ssan