Matters to be Taken into Account
10 Section 11 of the AD(JR) Act does not contain any criteria by reference to which the Court's decision to extend time for an application for review under s 5 is to be exercised. Quite early in the life of the AD(JR) Act, Wilcox J in Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 at 348 - 349 reviewed decisions of judges of this Court, all sitting at first instance, and distilled from them the following principles to guide, not in any exhaustive manner, the exercise of the Court's discretion:
'1. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of twenty-eight days is not to be ignored (Ralkon Agricultural Co. Pty Ltd v. Aboriginal Development Commission (1982) 43 A.L.R. 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 A.L.R. 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff [v Freijah (1982) 62 FLR 280] at [285]; Chapman v. Reilly unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7).
2. 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 is to be made between the case of a person who, by non-curial means, 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 Doyle v. Chief of Staff (1982) 42 A.L.R. 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v. Allen (1984) 1 F.C.R. 287 with Lucic at 414-415 and Hickey v. Australian Telecommunications Commission (1983) 47 A.L.R. 517 at 519. The reasons for this distinction are not only the 'need for finality in disputes" (see Lucic at 410) but also the "fading from memory" problem referred to in Wedesweiller v. Cole (1983) 47 A.L.R. 528.
3. Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at 287, Duff at [284-285], Hickey at 525-527 and Wedesweiller at 533-534.
4. However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, Lucic at 416, Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application.
5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417, Chapman at 6.
6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion: Wedesweiller at 534-535.'
11 His Honour was not attempting to set anything down in concrete; indeed, it is to be inferred from the nature and diversity of the principles his Honour distilled from the cases, that applications for extensions of time in different cases will not necessarily engage a consideration of common principles. What principles are engaged will depend on the facts of each case. Moreover, as his Honour indicated, the principles are not intended to be exhaustive.