Case: Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491
Outcome: referred to
If the time limits set out in the High Court Rules are applicable to this proceeding, the principles that govern the exercise of the power to enlarge time under those rules were outlined with great clarity by McHugh J in Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491. In particular, his Honour observed that a case "would need to be exceptional" before the time for commencing proceedings was enlarged by many months. In deciding whether or not to enlarge time, the Court may take into account any explanation for the delay in commencing proceedings, and the applicant's prospects for success in the proceedings. Moreover, as the constitutional writs are directed at the acts or decisions of public bodies or officials, the public interest requires that there be an end to litigation regarding the efficacy of such acts or decisions. 20 At [16] of his reasons for judgment, McHugh J observed: "Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy , "[t]he rules of court must prima facie be obeyed". The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court." (footnotes omitted) 21 In Applicant M70 of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 132 , a Full Court (Heerey, Dowsett and Bennett JJ) cited these comments of McHugh J, and said at [8]: "Applying those observations and, by analogy, the time limits in the High Court Rules to the present case, relief should be declined for reason of delay." 22 It may be noted that the expression "by analogy" in the passage set out above lends support to Gray J's view that the time limits set out in the High Court Rules do not ordinarily apply to matters that have been remitted to this Court. It is, of course, possible that the judge who remits the matter to this Court will order that those time limits do apply. However, that did not occur in this case. 23 I should add that although the applicant seeks an order nisi for a writ of prohibition, as well as an order nisi for a writ of certiorari, and there is no specific time limit in the High Court Rules in relation to prohibition, it is plain that she can gain no comfort from this. Prohibition is not an appropriate remedy when challenging a decision of the Tribunal that has already been made. There is nothing left to prohibit. Once the Tribunal has made its decision, it has no further function to perform.