Extension of time for commencing the proceedings
6This is the first application in this Court under r 59.10(2) of the UCPR for an extension of time for commencing judicial review proceedings. Part 59 of the UCPR contains rules about judicial review proceedings and is new, having come into effect on 15 March 2013. Rule 59.1(2) provides that: "This Part does not apply to proceedings commenced before the commencement of this Part". Rule 59.10 provides:
59.10 Time for commencing proceedings
(1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.
(2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).
(3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following:
(a) any particular interest of the plaintiff in challenging the decision,
(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,
(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,
(d) any relevant public interest.
(4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings.
(5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.
7A 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.
8This new extendable time limit for judicial review proceedings follows a trend in other Australian jurisdictions and in England. The position in other Australian jurisdictions is summarised as follows by Aronsen and Groves, Judicial Review of Administrative Action, 5th ed (2013) at [12.290] (omitting footnotes):
Prohibition has a built-in time limit, because there must be something left to prohibit. Most places therefore have no statutory limitation period for that remedy. An extendable three-month limit applies in Queensland to applications for the prerogative orders (mandamus, prohibition and certiorari) and a prerogative injunction. The extendable period for those remedies is six months in South Australia, and 60 days in Victoria, the Northern Territory and the Australian Capital Territory. In the High Court and Western Australia, certiorari has an extendable limit of six months. AD(JR) has a 28-day extendable deadline, which generally starts running from the day that a statement of reasons has either been volunteered with the decision or supplied in response to a timely request.
Delay is a relevant criterion for discretionary refusal of certiorari and prohibition, whether or not the court Rules stipulate a prima facie time limit and, if they do, even if that limit has not been breached. The court considers the interests of third parties when asked to extend the prima facie time limit. It refused in one case to accept an undertaking in damages to compensate for the loss caused by the applicant's undue delay in seeking review. Despite the case law that urges would-be challengers to exhaust their appeal options before resorting to judicial review, there are conflicting approaches to the question of whether a delay occasioned by pursuing an alternative remedy should count against the applicant.
9In England permission is required to proceed in a judicial review claim and the claim must be filed promptly and in any event not later than three months after the grounds to make the claim first arose, but the court may grant an extension of time: rr 54.4, 54.5 and 3.1(2)(a) Civil Procedure Rules 1998 (UK). The White Book 2013 (UK) contains the following annotations to r 54.5 (citations omitted):
A court may grant an extension of time under CPR Pt 3.1(2)(a) (previously, RSC Ord.53 itself provided that the court could extend the time if there was good reason to do so). The likelihood is that the courts will continue to apply the previous case law on RSC Ord.53 on whether there was a good reason for extending the time in deciding whether or not to grant an extension of time under CPR r.3.1 in a judicial review claim. The courts have always recognised that public law claims are unlike ordinary civil litigation and require strict adherence to the time limits contained in the rules governing judicial review. The courts are likely to require that there is a good reason or adequate explanation for the delay and that extending the time limit will not cause substantial hardship or substantial prejudice or be detrimental to good administration. Under the former provisions of RSC Ord.53 r.4 the courts refused to accept that there was good reason for extending the time for making a judicial review application where the delay was the fault of the applicant's lawyers. The courts have accepted that there was good reason for the delay if the applicant was unaware of the decision provided that they applied expeditiously once they became aware of it. The fact that the claim raises issues of general public importance may be a reason for extending the time-limit. Delay caused by factors outside the applicant's control, such as delay in obtaining legal aid, may be excusable.
10Supperstone, Goudie & Walker, Judicial Review, 4th ed (2005) at [18.13.7] cite English authorities for the proposition that: "The claimant must show good reason for extending time. Even if the claimant does so, the court may refuse permission on the grounds of hardship, prejudice and detriment to good administration". According to Southey, Weston & Bunting, Judicial Review, 2nd ed (2013) at [3.1.3], the English authorities identify the following as matters that can amount to a good reason for extending time (although none results in time being automatically extended): (a) an explanation for the delay in applying for judicial review, such as problems obtaining public funding, mistakes made by legal advisers, an attempt by the claimant to seek other legitimate remedies and reasonable attempts to resolve the issue without litigation; and (b) the importance of the substantive issues raised. Other factors that may be taken into account are the strength of the claim for judicial review and the nature of the decision challenged because challenges to certain decisions such as planning decisions can potentially have significant financial consequences for third parties.
11In the present case, the first decision was on 22 October 2012, the second decision was on 25 February 2013, the new Part 59 of the UCPR commenced on 15 March 2013, and the summons was filed on 23 May 2013. Therefore, if r 59.10 of the UCPR applies, an extension of time to 23 May 2013 is required for commencement of the proceedings in respect of the first decision but not in respect of the second decision. The summons as well as REX's notice of motion seeks an order for an extension of time in respect of the first decision.
12The threshold question is whether the time limit in r 59.10(1) applies retrospectively to the first decision. In Patsalis v Attorney General of NSW [2013] NSWCA 98 at [6] Basten JA said:
...Because the decision in question was handed down before the new Pt 59 of the UCPR commenced, it is by no means beyond doubt that the time limit in r 59.10 operates. Even if it does, although the decision was dated 20 November 2012, it was apparently not provided to the applicant until 8 December 2012. On that basis, the three month period would have expired about 11 days before the applicant provided to the Court and to the Crown Advocate his proposed application seeking to rely upon s 69 of the Supreme Court Act. In those circumstances, were an extension of time necessary, it should be granted.
13There is a presumption against retrospectivity of statutes, to which statutes merely affecting procedure are an exception. Where a period for taking legal action is limited by statute, it is a rule of construction that the statute should not, unless it is clearly intended, be given a retrospective operation to deprive a person of the opportunity of instituting an action which is otherwise within time. If it were given a retrospective operation, it would operate so as to impair an existing substantive right - the right to bring a claim - and such an operation could not be said to be merely procedural. However, if there is still a proper opportunity to commence the action despite the coming into effect of the new limitation period, the operation of the statute will be regarded as procedural. This rule of construction is founded on the principle that no suitor has any right to complain of procedural changes, provided no injustice is done. See Maxwell v Murphy [1957] HCA 7, (1957) 96 CLR 261 at 267, 270 per Dixon CJ, 277-278 per Williams J; Yrttiaho v Public Curator of Queensland [1971] HCA 29, (1971) 125 CLR 228 at 239-242 per Gibbs J (the rest of the Court agreeing, on this aspect); Egan v Cudgegong (Abattoir) County Council (1973) 1 NSWLR 222 (CA) at 226-227 per Jacobs P (Moffitt and Hope JJA agreeing); Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 (PC); Rodway v The Queen [1990] HCA 19, (1990) 169 CLR 515, at 518-520 (joint judgment); Habib v Nationwide News Pty Ltd [2006] NSWCA 14, (2006) 65 NSWLR 264 at [7] per Spigelman CJ (Santow JA and Nicholas J agreeing).
14In my opinion, in accordance with these principles, r 59.10 does not apply retrospectively to the first decision, therefore an extension of time is not required. Otherwise its effect would be to deny completely the right of REX to proceed without an extension of time because the first decision was made more than three months before Part 59 commenced on 15 March 2013. Although r 59.1(2) provides that Part 59 does not apply to proceedings commenced before the commencement of Part 59, it does not follow that the r 59.10(1) time limit always applies to proceedings commenced afterwards: the above principles apply to such proceedings.
15If I am in error and an extension of time is required for judicial review of the first decision, I would grant an extension of time to the date of filing of the summons for the following reasons:
(a)It would be an injustice for the retroactive operation of r 59.10 to completely bar judicial review of the first decision, particularly as the summons was filed only about two months after Part 59 of the UCPR commenced. This is not a lengthy delay in the context of this legislative scheme. Otherwise REX will be in the invidious position of not being able to challenge the first decision to charge a fee to REX and will only be able to challenge the quantum of the fee under the second decision.
(b)REX has a particular financial interest in challenging the first decision. It has received Council invoices totalling about $50,00 for security screening fees for the period from 20 March to the end of May 2013.
(c)There is no apparent possible prejudice to other persons caused by the passage of time if the relief were to be granted, other than to Council in relation to its security screening revenue for a comparatively short period.
(d)There is a public interest in the decisions to conduct security screening services at the Airport, to recover the costs thereof from the airline operators, and to spread the cost across all their passengers. It is unnecessary to go further, but the public interest is enhanced if REX is correct in its contention that under Commonwealth law security screening services are only required for the larger aircraft which its competitor flies.
(e)The substantive issues raised are important to REX, the other transport operator, and Council.