Judicial Committee of the Privy Council
| Author | J A Coutts |
| DOI | 10.1177/002201839505900204 |
| Published date | 01 May 1995 |
| Date | 01 May 1995 |
| Subject Matter | Judicial Committee of the Privy Council |
JUDICIAL
COMMITTEE
OF
THE
PRIVY
COUNCIL
'WITHIN A REASONABLE TIME'
Wang v Commissioner
of
Inland Revenue
In view
of
the multiplicity of occasions upon which the criminal courts have
had to consider the nature and consequences of delay in procedure due to a
failure to act within a reasonable time, any pronouncement
of
the Privy
Council on the question (even in the determination
of
an appeal in a public
matter in what is technically civil litigation) may provide pointers for the
future. The appeal heard by the Board in Wang's case
[1994]
1 WLR 1286
related to a revenue dispute, in which the Board had to pronounce upon
both the nature of the question, 'What is a reasonable time?' and upon the
futher question, 'What is the consequence of a failure to act within a
reasonable time when required by law to do so?' The answers to those
questions are not surprising: what is a reasonable time is a question
of
fact,
and what is the consequence
of
a failure to act within that time will depend
upon the terminology
of
the relevant statutory provisions---conclusions
often reached in the criminal courts. But the Board has added its advice as
to the methods to be used in determining each
of
these questions.
The question in this case was whether the commissioner had given his
decision (upon a notice of objection to assessment of tax) 'within a
reasonable time', as required by the relevant Order in Hong Kong. Lord
Slynn, after stating that the question was one of fact (at p 1293A), suggested
that the determination of that question could best be made by applying the
test applied in the Australian courts in Thornton vRepatriation Commissioner
(1981) 35 ALR 485, in the form of a distinction between (1) a delay for a
'considered reason' and (2) a delay 'in consequence of neglect, oversight or
perversity'.
It
is where there has been a delay of the second kind that the
second question ('What is the consequence of a failure to act
..
.T) arises.
Upon this, Lord Slynn pointed out that, in the past, decisions have been
made to depend on the distinction between time requirements which are
'mandatory' and those which are merely 'directory'. That distinction is by
no means clear, if only because where the distinction is between 'imperative'
and 'mandatory', the latter term is demoted to meaning what is usually
called 'directory'. The Board remarked that this terminology 'has a long
history and has led to much litigation and on occasion to somewhat refined
distinctions'. This is not the first criticism of the terminology. In Howard v
Bodington (1877) 2 PO 203, Lord Penzance, although recognising that the
terms consistitute 'the recognised language', stated that he was not sure that
it was 'the most fortunate language'. Here, the Board suggested that 'it is
simpler and better to avoid those two words "mandatory" and "directory"
and to ask whether the legislation intended the person making the determina-
tion to comply with the time provision'. If it did, and he has failed to do so,
the question is again as to the legislative intent: was the failure intended to
181
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