Plaintiff v Defendant

2 According to the Esser affidavit, the decision in issue was notified to Mr Papas on 8 February 2023. The question therefore arises whether the ex parte application before me today, 3 April 2023, is within the time prescribed by s 4(1) of the ALA.

Administrative Law Act provisions

3 Section 3 of the ALA provides:

Tribunal decisions may be reviewed

Any person affected by a decision of a tribunal may make application (hereinafter called an application for review) to the Supreme Court for an order calling on the tribunal or the members thereof (hereinafter called an order for review) and also any party interested in maintaining the decision to show cause why the same should not be reviewed. (emphasis added)

4 Section 4(1) of the ALA provides:

An application for review shall be made ex parte not later than thirty days after the giving of notification of the decision or the reasons therefor (whichever is the later) supported by evidence on affidavit showing a prima facie case for relief under section 7.

5 There is no provision in the ALA for the Court to extend time, and time cannot be extended under any other provision: Kuek v Victoria Legal Aid ('Kuek').[1] As Winneke P said in Kuek:

... It is as well to be clear, however, that the Act was largely concerned with procedures designed to render more effective the already existing powers of the Supreme Court to review decisions of administrative tribunals and to confer a wider locus standi to seek, vis-à-vis tribunals, remedies of a kind that the Supreme Court always had jurisdiction to grant. The entitlement to apply under the Act for those remedies was conferred subject to conditions... One such condition is that the application be made within a prescribed time, which the Court has no power to enlarge.[2]

6 Consequently, applications under the Act are treated as urgent as they are often made close to or on the thirtieth day after the notification of the decision or of the reasons for decision.

7 The Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules') provide by r 1.12 that:

(1) Unless the Court otherwise orders, subject to paragraph (2), these Rules apply, with any necessary modification, to an order for review under the Administrative Law Act 1978.

(2) A proceeding of a kind referred to in paragraph (1) shall not be commenced by writ or originating motion.

46.02 Application by summons

(1) An application made on notice to any person shall be by summons, unless the Court otherwise orders.

(2) An application by summons is made when the summons is filed in accordance with Rule 46.04.

(3) An application not by summons is made when it comes on for hearing.

9 The effect of this rule is that an ex parte application of the kind to be made under the ALA is made (as defined by the Act) when it comes on for hearing.

10 Thus, an application made under the ALA cannot be made by writ or originating motion. This means that the originating process for an application under the ALA is an affidavit. Moreover, because the application is ex parte it cannot be made by summons. Thus, what brings the application before the Court is a request to officers in the Court Registry responsible for managing the Judicial Review and Appeals List for the application to be listed before an Associate Judge before the expiry of the 30-day prescribed period.

11 Rule 77.01(2)(a)(ii) provides, in effect, that an Associate Judge may hear and determine any application, and exercise any powers and authorities under, ss 3, 4, 5 and 6 of the ALA.[3] Practice Note SC CL 9 entitled 'Judicial Review and Appeals List'[4] states that by virtue of s 4 of the ALA, an application for review under that Act is to be made ex parte within the time specified in s 4 supported by evidence on affidavit showing a prima facie case for relief under s 7 of the ALA. The application is made orally, to an Associate Judge or, exceptionally, to a Judge of the Court.[5]

12 If the matter is urgent and a full hearing is not practicable, it may be possible to file the affidavit, appear before an Associate Judge and have the hearing of the application adjourned. The applicant or their legal representative must, however, be ready to argue the substantive merits of the application at the time the application is made. An instance of an ex parte application being adjourned after the first hearing is Van Phuc Diep v Appeal Costs Board.[6]

13 Where, as in this case, the ex parte hearing is out of time and cannot for that reason result in an order for review, it may still be possible for the plaintiff to proceed under Order 56 of the Rules or to request reasons under s 8 of the ALA and make a further ex parte application under s 3 within the time prescribed by s 4.

14 It follows from these provisions that although I clearly have jurisdiction to deal with the application, it is out of time, having not come before me or any other Associate Judge, or a Judge of the Court, not later than thirty days after the giving of notification of the decision. I am bound, therefore, to dismiss the application. Orders will be made accordingly.

[1] [1999] VSCA 44; [1999] 2 VR 331, [13].

[2] Ibid [13] (emphasis added, references omitted).

[3] And r 77.03(1) provides for the general rule, subject to exceptions set out in r 77.03(2), that an application in a proceeding for any judgment or order which may, in accordance with this Order, be given or made by an Associate Judge shall be made to an Associate Judge, not a Judge of the Court.

[5] Judicial Review and Appeals List Practice Note SC CL 9, fn 1.

[6] [2003] VSC 386, [18], [44] (Gillard J).