FEDERAL COURT OF AUSTRALIA Selvidge v Director of Professional Services Review [2010] FCA 965 Citation: Selvidge v Director of Professional Services Review [2010] FCA 965 Parties: ANNE SELVIDGE v THE DIRECTOR OF PROFESSIONAL SERVICES REVIEW (COMMONWEALTH OF AUSTRALIA) and DEAN BROWNE File number: ACD 7 of 2010 Judge: STONE J Date of judgment: 31 August 2010 Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5, s 11(1)(c) Federal Court Rules O 13 r 2(4) Cases cited: Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305 Place: Canberra Division: FAIR WORK DIVISION Category: No catchwords Number of paragraphs: 9 Counsel for the Applicant: C Erskine SC Solicitor for the Applicant: DibbsBarker Lawyers Counsel for the Respondents: N Harrington Solicitor for the Applicant: Blake Dawson IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY FAIR WORK DIVISION ACD 7 of 2010 BETWEEN: ANNE SELVIDGE Applicant AND: THE DIRECTOR OF PROFESSIONAL SERVICES REVIEW (COMMONWEALTH OF AUSTRALIA) First Respondent DEAN BROWNE Second Respondent JUDGE: STONE J DATE OF ORDER: 31 AUGUST 2010 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The application for an extension of time under s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) is refused. 2. There be no order for the costs of this application. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY FAIR WORK DIVISION ACD 7 of 2010 BETWEEN: ANNE SELVIDGE Applicant AND: THE DIRECTOR OF PROFESSIONAL SERVICES REVIEW (COMMONWEALTH OF AUSTRALIA) First Respondent DEAN BROWNE Second Respondent JUDGE: STONE J DATE: 31 AUGUST 2010 PLACE: CANBERRA REASONS FOR JUDGMENT 1 This proceeding, which involves allegations of workplace harassment and bullying, was commenced by application and statement of claim filed on 3 March 2010. It came before the Court for first directions on 9 April 2010. Orders were made for the provision of further particulars, for the filing of a defence and for the inspection of documents produced under subpoena. On 29 April 2010 an amended application and statement of claim were filed. The respondent filed a defence to the amended statement of claim on 19 May 2010. 2 The amended application relies on the provisions of the various Acts including the Fair Work Act 2009 (Cth) and the Workplace Relations Act 1996 (Cth), and the Judiciary Act 1903(Cth). There was some dispute between the parties over the application for leave to file an amended application and statement claim however, save for one issue the parties have now come to an agreement. 3 The outstanding matter is that, in addition to the legislation previously mentioned, the applicant now seeks to bring its claim under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). As the applicant is out of time to make this claim it can only do so with leave of the Court pursuant to s11(1)(c) of the ADJR Act. The respondent opposes the grant of leave. 4 The application for leave is supported by the affidavit of Felicity Rafferty sworn on 8 July 2010. Ms Rafferty alleges that the new claim arose out of the same facts as those already pleaded. The applicant's only explanation for the delay is that the issue arose with the appointment of new counsel for the applicant, Mr Eskine SC. Mr Erskine was frank about this saying: All I can say to your Honour in relation to that is that with a change of counsel comes a change of heart;…..it seemed to me that if we were going to allege 39B prerogative writ relief, we were covering all the same ground for practical purposes as the AD(JR) Act. It was therefore worthwhile to include the AD(JR) Act as an alternative. Mr Eskine added: [T]hat the issues that would be traversed in an AD(JR) application are going to be traversed anyway, because of the way in which the amended pleading covers … .both AD(JR) relief and also prerogative writ relief. 5 It was submitted that by including reliance on the ADJR Act the real matter in dispute between the parties would be ventilated. There may be some inconsistency between this submission and Mr Erskine's assertion that in any event the additional claim would be without prejudice to the respondent. In any event Mr Harrington admitted that in opposing leave he could not point to any prejudice to his client. . He did point out however, that while as early as April 2010 the applicant foreshadowed her intention to amend the claim to include a claim under the ADJR Act, she did not do so when a revised pleading was filed on 29 April 2010. 6 This leads me to the importance of time limits in regulating litigation which is a point that must not be overlooked. Time limits for bringing applications or appeals are prescribed for good reasons. While the Court has power to extend the period of 28 days provided under s 11 of the ADJR Act, it should not do so without good reason. In the absence of such a reason an extension should not be granted even if to do so would not cause prejudice to the respondent. 7 As Wilcox J observed in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305 at 310: [T]he court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of 28 days is not to be ignored. Indeed it is the primafacie rule that proceedings commenced outside the period will not be entertained. His Honour also added that mere absence of prejudice is not enough to justify the grant of an extension. 8 In this matter, the circumstances are such that the grant of leave would not cause significant prejudice to the respondent. However, it seems to me it will also not be of any significant prejudice to the application for leave to be denied. On the applicant's own admission, the same facts will be covered and pretty much the same relief will be available. In the circumstances, I have concluded that the application for leave should be refused. 9 The respondent has indicated that it does not wish to seek costs in relation to this application and therefore the orders of the Court will be that the application is refused and that there be no order as to the costs of this application. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 8 September 2010