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  WASAT 15 at ). 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.
The principles applicable to extensions of time in SAT were set out by the Supreme Court of Western Australia in Di Virgilio v McCleary  WASC 437 (Hall J). The principles were applied by the Tribunal in the twin decisions of Murrin and City of Wanneroo  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  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  WASC 437 at ). 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  WASC 437  applying Gallow v Dawson  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.