Judicial Review - Commencing appeal following expiry of appeal period - Applicable principles

What has happened?

In an ex tempore judgment handed down on 18 September 2018, the Land and Environment considered an application to commence judicial review proceedings out of time: see Wingecarribee Shire Council v Uri Turgeman [2018] NSWLEC 146.

According to Rule 59.10(1) of the Uniform Civil Procedure Rules 2005 (UCPR), “Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.”

However, Rule 59.10(2) of the UCPR provides that the Court has the discretion to extend this period following considering of the matters listed in Rule 59.10(3). These matters include:

  1.  any particular interest of the plaintiff in challenging the decision,

  2.  possible prejudice to other persons caused by the passage of time,

  3.  the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

  4.   any relevant public interest.

 Rule 59.10 does not apply to proceedings in which:

  1. there is a statutory limitation period for commencing the proceedings: see Rule 59.10(4); or

  2. the setting aside of a decision is not required: see Rule 59.10(5).

In this case, the exceptions arising under Rules 59.10(4) and (5) did not arise and so these proceedings remained subject to the Rule.

Findings by the Court

The Court reviewed the case law in relation to the operation of Rule 59.10(2) and distilled the following key principles (at [34]):

  1. the applicant bears the onus of establishing why the Court should exercise its discretion to extend time in his or her favour;

  2. the factors to be considered on any application for leave to extend time are not limited to those in r 59.10 of the UCPR, but include:

    (a) the length of the delay;

    (b) the reasons for the delay; and

    (c) whether the applicant has a fairly arguable case.

  3. the weight to be given to relevant factors will depend upon the circumstances of the particular case and will require the Court to carry out a balancing exercise;

  4. the question of potential prejudice to a party caused by the delay is a significant consideration;

  5. the rule of law is strengthened by provisions such as r 59.10 of the UCPR requiring the discipline of bringing proceedings within a reasonable time so that the proper business of government and the reasonable interests of third parties are not unjustly prejudiced;

  6. a claimant cannot fairly be criticised for failing to take action before he or she knew, or by exercising reasonable diligence should have known, that there was anything to take action about;

  7. the Court has frequently made a distinction as to the unreasonableness of the delay on the basis of intention. There is a difference between intentional or contumelious delay and delay which is merely the result of a “bona fide mistake or blunder”, mere “oversight”, or caused by seeking to clarify rights and trying to solve the matter without litigation;

  8. there is danger in placing too much emphasis on the prospects of success. To do so invites the parties to treat the application as a dress rehearsal for the full appeal. It is not necessary, or appropriate, for the applicant to do more than demonstrate a fairly arguable case.

In this case, the Court found that the Applicant’s delay was not unreasonable in the circumstances; that resolution of the matter it raised in the proceedings was in the public interest; and that its case was arguable.

For the above reasons, the Court held that the time for commencing these judicial review proceedings should be extended.

Implications

This case provides a useful reminder of the factors that will be considered by a Court in an application under Rule 59.10 of the UCPR for an extension of time to commence judicial review proceedings.

Further information

For further information on this judgment and its potential implications for your development please contact Marcus Steele, Director, on (02) 8005-1976 or marcus.steele@bicksteele.com.au.