Case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Outcome: applied
However, despite the terms in which the application is framed, it is not automatically clear from the remainder of the file documentation whether it is in fact all search warrants for which review is being sought in this Court, or only the search warrant issued on 17 September 2004 and executed on 22 September 2004 by the second respondent. 81 In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J articulated principles relevant to an application for an extension of time to make an application for an order of review under the ADJR Act. In that case his Honour noted that s 11 of the ADJR Act does not set out 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, however the following principles appeared to be applicable: '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... Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained... 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. 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... 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... 4. However, the mere absence of prejudice is not enough to justify the grant of an extension... In this context, public considerations often include... A delay which may result, if the application is successful, in the unsettling of other people... or of established practices... 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... 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...' (pp 348-349) 82 Applying these principles to the case before me, it is my view that, on balance, the leave sought by the applicant for an extension of time should not be granted. My reasons are as follows: 1. Although the fact that the applicant was in prison for 16 days is an acceptable explanation for some delay in making an Application for an Order of Review, it is not an acceptable explanation for 22 months delay in making that application. No explanation has been provided by the applicant as to the length of the delay in making an Application for an Order of Review. 2. As I have already indicated in my judgment, a number of particulars in the application with respect to the second respondent are, in my view, simply wrong (for example, claims to the effect that the second respondent acted outside her powers in issuing a search warrant with respect to offences allegedly occurring outside Queensland), and accordingly the merits of the application in this respect do not support an extension of time. 3. Although it is awkward to say in the context of criminal proceedings that the Commonwealth would be 'prejudiced' by a grant of an extension of time in relation to this application, I note that criminal proceedings in the Magistrates Court at Brisbane in relation to the charges against the applicant are currently part-heard. As a matter of public policy, it would in my view be undesirable to allow process to continue in the Federal Court in relation to the circumstances involving the issue of a search warrant by the second respondent, to improperly interfere with those proceedings in the Magistrates Court. 4. The potential for an abuse of process to occur where an applicant seeks judicial intervention from different courts in relation to the same matter is, in my view, a factor to take into consideration in relation to whether to extend time. This is highlighted in particular by the submissions of Mr Asuzu that it is necessary to air claims before the Federal Court that either: (a) no proper application for a search warrant nor supporting sworn affidavit of the relevant AFP officer were produced to the second respondent, and accordingly the issue of the search warrant by the second respondent was pursuant to a flawed process, or (b) if those documents existed, the application for a search warrant and the supporting sworn affidavit of the relevant AFP officer which were produced to the second respondent contained misleading statement and falsehoods, which also resulted in the issue of the search warrant by the second respondent being pursuant to a flawed process. Mr Asuzu submitted that these documents were key material in relation to the Application for an Order of Review of the conduct of the second respondent. Mr Asuzu also submitted that notices to produce were served on, inter alia , the second respondent in relation to the application for the search warrant and the supporting affidavit, but no documents have been produced. However I note: (a) no notices to produce in relation to these documents have been filed with the Court (b) at the hearing, a letter to the applicant was tendered indicating that the second respondent has the supporting affidavit of the AFP officer relevant to the issue of the search warrant but the second respondent was not prepared to produce the affidavit as to do so would be contrary to the public interest in light of current criminal proceedings involving the applicant before the Magistrates Court (c) as submitted by Mr Porter with reference to the affidavit of Mr Barry Cosgrove, a solicitor with the Australian Government Solicitor, filed 27 October 2006, the applicant has already endeavoured to have these documents produced by summons in the Magistrates Court in Brisbane, however the Magistrate set the summonses aside on 12 July 2006. Any attempt to seek production in this Court of either the AFP application for the issue of the search warrant or the supporting affidavit would, in my view, smack of abuse of process in light of preceding events in the Magistrates Court at Brisbane, and I am not persuaded that the prospect of further action by the applicant to seek production of this material in the Federal Court constitutes reasons for granting an extension of time of his Application for an Order of Review. 5. Finally, the applicant, both in his application and through his Counsel, has made strong submissions to the effect that his case involves individual liberty and freedom, and effective control of abuse of police powers. These are serious issues. However as I have already stated in my judgment, the jurisdiction of this Court to hear the applicant's application for order of review in relation to the relevant related criminal process decisions in this case is excluded by s 9A ADJR Act. In my opinion, this conclusion and the resultant lack of merit in the substantive case of the applicant strongly militates against any utility in extending time to make an application for order of review. 83 The application sought an order of review of the conduct of the third respondent, in that the third respondent allegedly: &#8226; failed to supervise the proper issuance of search warrants in the State of Queensland &#8226; permitted an improper procedure to be used to issue search warrants, whereby a justice of the peace was allowed to issue search warrants for an out of State offence instead of a Magistrate. 84 As I have already indicated in my judgment, the procedure to issue a search warrant by a Justice of the Peace rather than a Magistrate in respect of an out of State offence was a proper procedure under the Crimes Act . Accordingly, in my view this aspect of the application with respect to the third respondent is not competent. 85 In relation to the balance of the claimed conduct of the third respondent, the applicant particularised his claims as follows: &#8226; the third respondent had failed to adequately appoint qualified individuals to the office of the justice of the peace, that know and respect the provisions of the applicable law and/or Act &#8226; the third respondent had failed to supervise the operation of the Justices of the Peace and Commissioners for Declarations Act 1991 (Qld) in Queensland and have aided and abetted their actions by refusing to disclose the grounds for the search warrant applications by the said Australian Federal Police &#8226; the third respondent simply accredits persons who act mechanically or as mere rubber stamps or corrupt and malicious Australian Federal Police agents without due regard to the duties created under the Act.