Case: McGibbon v Linkenbagh (1996) 41 ALD 219
Outcome: followed
Kiefel J, then of the Federal Court, considered the same question with regard to the refusal of a disciplinary review committee to grant an adjournment to the applicant in McGibbon v Linkenbagh (1996) 41 ALD 219. Her Honour stated (at 224) that the committee's refusal was ...not a "decision" of which s 3(1) and s 5(1) AD(JR) Act speaks, since it is neither final nor determinative of a substantive matter. Although one is tempted to conclude that in a sense it has some operative effect and carries with it findings adverse to Mr McGibbon, it is to be seen as merely procedural and intermediate and as such is to be viewed as conduct engaged in as a step towards and for the purpose of the later "decision". 18 In my view, the decision in the present case made on 20 August 2007 regarding an extension of time falls into the same category. The granting of an extension was not required by or provided for under the Act, nor was it a final determination of a substantive matter. Rather, it appears to be a procedural and intermediate step. In my opinion, the conduct of the delegate would not be reviewable under s 5, but might be reviewable under s 6 of the ADJR Act. However, as the submissions on behalf of the Attorney-General acknowledge, the decision of 28 September is within the scope of s 5; the grounds of review relied upon by the applicants are the same in relation to both decisions; and the remedies sought by the applicants relate to the 28 September decision. It is therefore sufficient for the present proceedings that the court has jurisdiction to review the 28 September decision. It is not necessary to express a concluded view on the character of the 20 August decision. 19 I also note, however, that the application filed by the applicants was filed outside of the 28 day time period within which an applicant may lodge an application for review (s 11(3) of the ADJR Act). In such circumstances, the Court has a discretion, pursuant to s 11(1)(c) of the ADJR Act, to allow an application to be lodged "within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows." 20 The applicants submit that the application should be allowed to be heard, notwithstanding that it was filed outside of the prescribed period, on the basis that the applicant was not legally represented at the time of the delegate's decision and the application was filed only a very short time (some 10 days) after the end of the prescribed period. 21 On behalf of the Attorney-General, it was submitted that the Court, in the exercise of its discretion to allow further time pursuant to s 11(1)(c) of the ADJR Act, may take into account that the applicants had available to them "another more specific avenue for review by this Court, under s 190D" of the Act as it stood immediately before the commencement of the Native Title Amendment (Technical Amendments) Act 2007 (Cth). Section 190D(2) of the Act, before those amendments, provided that if the Registrar did not accept a claim for registration, the applicant could apply to the Federal Court for a review of the Registrar's decision. Such an application for review under s 190D(2) of the Act could have been made by the applicants within 42 days of the notification of the Registrar's decision: O 78 r 12(ii) of the Federal Court Rules .