Case: Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284
Outcome: cited
Finkelstein J arrived at that conclusion in Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284. 9 In the present case, the evidence shows that the last contact between the applicant and the Minister took place on 11 May 2005. On that day, the assistant secretary of the Department for Environment and Heritage wrote to the managing director of the applicant stating, in effect, that the Minister's decision would need to await the receipt of information on the cumulative impact of wind farms. The letter said that the additional information was expected by the end of June 2005. The material before me indicates that that timeframe was far too optimistic. The relevant material was not received by the Minister until some time on or about 22 February 2006. However, the letter did make it clear that the Minister would not be able to make an informed decision on the Bald Hills Wind Farm until he received that information. The letter also said that, in the view of the Department, the statutory time frame for making the decision had been refreshed and had not at that time expired. 10 There is no evidence of later communications between the applicant and the Minister. This has some significance, having regard to Heerey J's decision in 7 Eleven . In that case, Heerey J made an order for costs not simply because of the lengthy delay of over two years in making the decision, but also the fact that the applicant, before commencing proceedings, had given notice of intention to bring the proceedings to the Commission and that two promises by the Commission to make a decision had not been fulfilled. 11 In this case, Ms Nance, counsel for the Minister, accepts that the statutory time limit had expired and that the decision was out of time. However she submits that the applicant was aware that the Minister had deferred a decision awaiting a report which, in the event, was not finalised until February 2006. In all the circumstances, I am not satisfied that this is a case where it can be said that the Minister has acted so unreasonably that I should make an order for costs in favour of the applicant. 12 I appreciate the applicant's point that the Minister's lengthy delay, in disregard of a statutory time limit, led to the institution of proceedings. On the other hand, there was knowledge on the part of the applicant that the Minister was awaiting a report and I consider that there was a significant absence of communication (at least so far as the evidence goes) about the intention to commence the proceedings. 13 In the circumstances, I consider that the appropriate orders are that the proceedings be dismissed that there be no order as to the costs of the proceedings. I will so order. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young. Associate: Dated: 4 July 2006 Counsel for the Applicant: HR Carmichael Solicitor for the Applicant: Herbert Geer &amp; Rundle Counsel for the Respondent: E Nance Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 7 April 2006 Date of Judgment: 7 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/848.html