For a lesson in how not to run a claim for public interest immunity, see the judicial critique of the woeful effort in Holloway v Commonwealth of Australia [2016] VSC 317.  Since succeeding in a claim for public interest immunity in WA v Christie (2005) 30 WAR 514, I've argued many of these cases.   There are some basic lessons here:

1. the deponent of your affidavit in support should read the all the documents the claim relates to ([19]);


2. the basis of redactions should be explained if it is not self-evident ([22])


3. distinctions between reasons for redaction should be indicated ([55]); and, above all,


4. your claims should be consistent and not over material already in the public domain: [130].

The case can be found in JADE: https://jade.io/article/480393

Yes, a lawyer has a duty to advise and protect a client against unnecessary expense – including the unnecessary expense of instructing the lawyer to do legal work that is “entirely disproportionate to the complexity of the case and the nature of the matters in issue in the proceedings:  Judge O’Brien of the Family Court of Western Australia in Taronite and Mabra (Costs) [2017] FCWA 72, [103]-[108].  In this case  the parties spent in excess of $570,000 in legal fees.  See the case in Jade at https://jade.io/article/533469

Lawyers beware!  Client legal privilege does not protect communications that were made in furtherance of an illegal scheme, even where the lawyers are unaware of the illegal scheme being pursued by their clients.

In Aucare Dairy Pty Ltd v Huang [2017] FCA 746 O’Callaghan J of the Federal Court considered the authorities and noted that they show illegality to include “fraud on justice” and conduct that would “frustrate the processes of the law”.

On the facts of this case, the Court was satisfied that the applicants had established a strong prima facie case that the respondents engaged in wrongful and fraudulent conduct contrary to various legal duties.  The respondents had to produce communications with their solicitors.

The Jade report is at https://jade.io/article/539836

The NSW Court of Appeal held in February 2017 that the NSW Anti-Discrimination Board does not have jurisdiction to deal with complaints by a NSW resident about public acts by residents of other states.  The State tribunal is not a “court of a State” and so is unable to exercise judicial power to determine matters between residents of two States because the State law which purports to authorise the tribunal to do so is inconsistent with the conditional investment by s 39(2) of the Judiciary Act of all such jurisdiction in State courts, and therefore rendered inoperative by virtue of s 109 of the Constitution.

See the report of Burns v Corbett; Gaynor v Burns [2017] NSWCA 3; (2017) 316 FLR 448 in Jade: https://jade.io/article/519810

The High Court granted special leave on 22 June 2017: http://www.hcourt.gov.au/assets/registry/special-leave-results/2017/22-06-17Determin.pdf

Wigney J found that as a result of ASIO's procedures Mr El Ossman lost the practical opportunity to propound his case for a favourable assessment, and that this amounted to practical injustice. See El Ossman v Minister for Immigration and Border Protection [2017] FCA 636.

An application to the State Administrative Tribunal (SAT) in its review jurisdiction must be made within 28 days of the decision (Rule 9 of the State Administrative Tribunal Rules 2004 (WA)). However, the SAT can extend time on application or on its own initiative (Rule 10). What does an application for an extension of time need to show? This post discusses what is involved.

Has the clock really started?

Section 20(1) of the State Administrative Tribunal Act 2004 (WA) provides that for most reviewable decisions the decision-maker must give the person written notice of the decision and of the person’s right to seek review from SAT. In Bocol Constructions Pty Ltd and Keslake Group Pty Ltd, Member P Le Miere found that when a decision-maker is required by s 20(1) of the Act to give notice, the 28-day period in which an application for review must be lodged only commences when notice is given (Bocol Constructions Pty Ltd and Keslake Group Pty Ltd [2017] WASAT 15 at [34]). Therefore, if your client is concerned about a decision that is within a class that requires notice of the review right, but no notice of the review right was provided, the 28-day period will not have commenced.

Principles

The principles applicable to extensions of time in SAT were set out by the Supreme Court of Western Australia in Di Virgilio v McCleary [2012] WASC 437 (Hall J). The principles were applied by the Tribunal in the twin decisions of Murrin and City of Wanneroo [2016] WASAT 87 and 88 (Member D. Aitken) and in the decision of SC Projects Australia Pty Ltd and Sea Trucks Australia Pty Ltd and Field Deployment Solutions Pty Ltd [2015] WASAT 69 (Judge T Sharp, Deputy President). The facts of these cases (where extensions of time were refused) illustrate the principles.

Discretion and onus

The power to extend time in rule 10 of the State Administrative Tribunal Rules 2004 is discretionary. It is a remedial power. Therefore, the SAT, like a court, is to exercise its jurisdiction cautiously with due regard to the necessity for maintaining the principle that the rules are to be complied with and not ignored.

The party seeking the extension of time is seeking an indulgence. Thus, an applicant bears the burden of persuading the SAT to grant its request.
Given the onus lies with the applicant, it is open to a respondent to:
(a) lead no evidence and simply put the applicant to proof;
(b) cross-examine and make submissions challenging the applicant’s case for an extension of time; or
(c) cross-examine, make submissions, and additionally to lead its own evidence in opposition to the applicant’s case for an extension of time.

Four core factors
The SAT’s assessment on whether to grant an extension of time usually turns upon an analysis of four core factors. They are:
1. the length of the delay;
2. the reasons for the delay;
3. whether there is an arguable case; and
4. the extent of any prejudice to the respondent.
The four core factors are not an exhaustive list. Therefore, parties need not confine argument to only these factors (see the similar, but longer list of factors in the decision of Wilcox J in Hunter Valley Developments Pty Ltd (1984) 3 FCR 344; (1984) 7 ALD 315). They are referred to as “core” factors because in some cases other factors may assume special importance.

Injustice – the critical threshold

What appears to have been overlooked in many of the SAT cases considering an extension of time, is that the discretion exists for the “sole purpose of enabling a court or tribunal to do justice between the parties” (Di Virgilio v McCleary [2012] WASC 437 at [39]). Therefore, it follows that the discretion “can only be exercised in favour of an application upon proof that strict compliance with the rules will work an injustice upon the applicant” (Di Virgilio v McCleary [2012] WASC 437 [39] applying Gallow v Dawson [1990] HCA 30; (1990) 93 ALR 479, 459 (McHugh J)).

This is critical because even if an applicant’s arguments on the four core factors are all strong an application for an extension of time could still be refused. Therefore, any application should be shaped to highlight any injustice that will likely be experienced by the applicant should the SAT not extend time to permit the review to be heard.

For a respondent, it is critical that submissions to the Tribunal point out the need for the applicant to establish injustice so that it is clear what case the applicant must make out.

My article on this topic appeared in “The Practitioner: Journal of the Law Society of the Northern Territory”.

In planning law there are many circumstances in which decision-makers are required to “have due regard” to certain things.  This post explores what this obligation entails.

The Commissioner for Consumer Protection suffered a defeat on technical grounds in a recent application to the State Administrative Tribunal for seeking disciplinary sanction against a corporate licensee of a real estate agency. 

Planning approvals and consents are of fundamental importance to our society.  Finality and certainty is important, but so is flexibility to adapt to changed circumstances.

Planning approvals are important, so it is imperative to know whether, once a decision is made, it can be amended, and if so, in what circumstances and to what extent.

As there are many types of public inquiries,[1] my aim is modest: to summarise some general principles based upon my experience appearing in coronial inquests.