Case: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 ; (1984) 3 FCR 344
Outcome: considered
the discretion to extend time to institute an appeal pursuant to O 53 r 7 of the Rules is not expressly confined by specified criteria, there is a range of factors of varying actual importance, which have been developed by the Court in analogous situations. Frequently relied on are the criteria referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 ; (1984) 3 FCR 344 where his Honour was concerned with s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the AD(JR) Act') which, like O 53 r 7, does not set out any criteria by reference to which the court's discretion to extend time for an application for review under s 5 of the AD(JR) Act is to be exercised. At 348 his Honour said: 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 distilled the following principles to guide, not in any exhaustive manner, the exercise of the court's discretion ... His Honour then went on to deal with each of these principles, which, relevantly, may be paraphrased in the following way: (1) Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper to do so. 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. (2) 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 and a case where the decision-maker was allowed to believe the matter was finally concluded. (3) Any prejudice to the respondent occasioned by the delay is a material factor militating against the grant of an extension. (4) The mere absence of prejudice is not enough to justify the grant of an extension. (5) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. More recently, however, the importance to be attached to the merits of the appeal has, arguably, been downgraded in its ranking among the criteria to be taken into account by the court in exercising its discretion as to whether or not an extension of time should be granted. For example, in Culley v Australian Securities and Investments Commission [2008] FCA 1784 at [5] , Jessup J observed: A party to a proceeding in the Tribunal has an appeal as of right on a question of law. Such an appeal is in the nature of a new proceeding in the original jurisdiction of the court. It is unnecessary for an applicant in such an appeal to have grounds of any particular strength or intrinsic merit (although I recognise, of course, the relevance of s 31A of the Federal Court of Australia Act 1976 (Cth) in these, as in all other, original proceedings). For this reason (and perhaps the more so because of the availability of s 31A) , I consider that the court should be slow to reject an application for an extension of time under s 44(2A) of the AAT Act, where otherwise the principles in Hunter are appropriately satisfied, for no reason other than that the appeal, if prosecuted, would be unlikely even very unlikely to succeed. I note that this was effectively the approach taken by the court in Mustafa v Chief Executive Officer, Centrelink [2000] FCA 1897 and in Wiegand v Comcare Australia [2005] FCA 1904. I consider that such an approach would be consistent with that taken by Fitzgerald J in Lucic [ v Nolan (1982) 45 ALR 411] and, because his Honour followed Lucic , by Wilcox J in Hunter .