Case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Outcome: applied
Counsel for the respondent also submitted that the proper principles applicable to determining whether to extend time are those stated in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 ('Hunter Valley Developments') . 38 Further, counsel for the respondent submitted that there is no adequate explanation for the applicant's delay in seeking to bring an application for review of the Committee's determination in its final report. The respondent submitted that whatever the applicant's financial position was, it is apparent that the applicant had access to legal advice throughout the process. Lengthy representations were made on his behalf in response to the draft report by the Committee, and further representations were made in response to the respondent's draft determination. 39 Further, counsel for the respondent submitted that after the date of the handing down of the final report the applicant took no steps to protest the findings in the Committee's final report. He submitted, further, that the respondent had subsequently taken action on the basis that the final report of the Committee was unchallenged and effective. A draft determination was made, submissions were sought from the applicant, and provided, and a final determination was made. No challenge was made to the lawfulness of the Committee's final report even when the applicant commenced his application for review in this Court in February 2005. 41 I accept counsel for the respondent's submissions that an expression of the appropriate principles to apply in determining whether to extend the time for the making of an application for review provided for under s 11(3) of the ADJR Act, is to be found in the observations of Wilcox J in Hunter Valley Developments at 348-349. I intend to apply those observations to the facts of this case. Of particular relevance to this case is the following observation at 348-349: '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. 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 (who has not "rested on his rights": per Fisher J. in Doyle v. Chief of Staff (1982) 42 A.L.R. 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v. Allen (1984) 1 F.C.R. 287 with Lucic at 414-415 and Hickey v. Australian Telecommunications Commission (1983) 48 A.L.R. 517 at 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at 410) but also the "fading from memory" problem referred to in Wedesweiller v. Cole (1983) 47 A.L.R. 528. ' 42 Firstly, I deal with the applicant's explanation for the delay. In effect, the applicant's case is that he did not know that there was a time limit within which to 'appeal' from the findings of the final report of the Committee and he did not get legal advice because he was without financial means. In my view, this is not a satisfactory explanation for the delay in failing to commence the application for review within the prescribed period. I accept the respondent's submissions that whatever the state of the applicant's financial position was at the material time, the evidence shows that the applicant was able to obtain the legal advice and assistance of a solicitor both before and after the final report of the Committee had been made. This is evident from the fact that the applicant used the services of a solicitor to make submissions in response to the draft report of the Committee and the draft determination of the respondent. 43 Further, a relevant consideration in relation to the applicant's delay is the applicant's 'extra curial' conduct of the kind referred to by Wilcox J in Hunter Valley Developments . The conduct in question is assessed by reference to the manner in which the applicant acted after becoming aware of the determination which he now seeks to impugn. 44 It is significant that the draft report was only forwarded by the Committee to the respondent on 28 June 2004 - after the expiry of the prescribed 28 day period for the making of an application under the ADJR Act; and that the respondent then proceeded, relying upon the findings in the final report of the Committee, to make a draft determination. 45 In the draft determination the respondent proposed various 'directions' which are set out in [19] above. These directions included a direction that the applicant be fully disqualified for a period of two months from the time when any final determination takes effect. It is also significant that on the applicant's instruction, the solicitor, during the course of making submissions in relation to the draft determination of the respondent, stated that the applicant was prepared to 'accept' all the 'determinations' made by the respondent save for the direction in relation to the full disqualification for two months. The applicant adopted this position, notwithstanding that the respondent had in its written reasons made it plain that it had accepted and was acting on the findings made in the final report of the Committee and that its determination and directions were based on those findings. The position of the applicant in limiting his challenge to the draft determination to the proposed full disqualification for two months penalty, is consistent with his conduct in not seeking to impugn the final report of the Committee by way of an application for review; and, indeed, with his position at the time of the filing of the application for review in this Court on 10 February 2005. By this conduct, the applicant manifested an intention not to challenge the lawfulness of the final report of the Committee and he permitted the respondent to embark upon the draft and final determination process a process in which he participated without advising the respondent that he did not accept the determination in the final report, indicating that his only challenge was to one element of the penalty proposed to be imposed by the respondent.