Time Limitations on Applications for Judicial Review

Published date01 March 2004
Date01 March 2004
Enid Campbell
and Matthew Groves
In most Australian jurisdictions there are limitations on the time within which
proceedings for judicial review of governmental acts (or for particular remedies) are to
be commenced. Some such limitations are imposed by statute, some by rules of court.
In some cases the relevant court of supervisory jurisdiction is authorised to extend the
time. But in other cases there is no discretion to extend the time.
This article examines the justifications which have been offered for imposition by
legislation of limits on the time within which applications for judicial review are to be
made. It surveys Australian legislation on the subject and examines the legal effects of
such legislation. The article also considers reasons why it may be thought desirable to
give courts authority to extend prescribed time limits and the associated question of
whether exercise of that authority should be regulated by legislative standards. The
article also examines the factors which the Federal Court has considered relevant in the
exercise of its discretionary power to extend time under s 11 of the Administrative
Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'), a section which is substantially
reproduced in s 10 of the Administrative Decisions (Judicial Review) Act 1989 (ACT), s 26
of the Judicial Review Act 1991 (Qld) and s 23 of the Judicial Review Act 2000 (Tas).1
The case for imposition of time limits on applications for judicial review was put most
forcefully by Lord Diplock in O'Reilly v Mackman2 in the following terms:
The public interest in good administration requires that public authorities and third
parties should not be kept in suspense as to the legal validity of a decision the authority
Emeritus Professor, Faculty of Law, Monash University.
# Lecturer, Faculty of Law, Monash University.
1 The Law Reform Commission of Western Australia has recommended the enactment in
that State of legislation modelled on that of the Commonwealth, with some variations. The
Commission recommended the introduction of a specified time limit of six months for the
commencement of applications for judicial review: Law Reform Commission of Western
Australia, Judicial Review of Administrative Decisions, Report No 95 (2002) 31.
30 Federal Law Review Volume 32
has reached in purported exercise of decision-making powers for any longer period than
is absolutely necessary in fairness to the person affected by the decision.3
Those observations were made in the context of the English legislative provisions
regarding proceedings for judicial review4 and whether those provisions could be
circumvented by resort to other modes of contesting the validity or legality of
governmental actions, notably by ordinary civil action.5 Proceedings by ordinary civil
action have, historically, differed from proceedings for judicial review in several ways.
They could be commenced without the court's leave. The time limits created under the
statute of limitations were much longer than the time limit applicable in judicial review
proceedings. The procedures governing the conduct of judicial review proceedings
were designed to produce much speedier determination of those proceedings than
ordinary civil actions.
In an extra-judicial speech published in 1986, Sir Harry Woolf (now the Lord Chief
Justice) endorsed the sentiments expressed by Lord Diplock in relation to the
justification for the relatively short time limit for institution of judicial review
proceedings (three months commencing on the date on which grounds for judicial
review first arose). 'Delay', he said, 'can cause considerable uncertainty and
inconvenience, not only for the respondent authority but members of the public as
well.'6 Some years later the English Law Commission, as part of a general inquiry
entitled Administrative Law: Judicial Review and Statutory Appeals, considered the
justifications for the relatively short time limits for the institution of judicial review
proceedings. Its advice was that the existing time limitation be retained 'to give effect
to the principle of certainty…'7
The Kerr Committee also favoured the introduction of a general time limitation on
the commencement of applications. The Committee concluded:
Although there is much to be said for allowing a fairly lengthy period for lodgement [of
applications for judicial review]…we feel that the demands of efficiency in government
dictate that the period be short, perhaps even as short as thirty days. We consider that the
3 Ibid 280–1. See also Federal Airports Corporation v Aerolineas Argentinas (1997) 147 ALR 649,
660 (Beaumont, Whiltlam and Lehane JJ); Law Commission of Great Britain, Administrative
Decisions: Judicial Review and Statutory Appeals Report No 226 (1994) paras 2.3–2.7, 5.23–5.30;
and Michael Fordham, Judicial Review Handbook (1994) 119–25.
4 Supreme Court Act 1981 (UK) s 31(6); Rules of the Supreme Court O 53 r 4(1) ('RSC'). This rule
was replaced in 1999 by Civil Procedure Rule r 54.5(1). The new rule does not differ in any
material respect from its predecessor.
5 Under the now repealed O 53 the validity of administrative acts could be challenged
collaterally in a civil action, but acts which were reviewable under the Order could not be
reviewed in a suit for declaration or injunction commenced as an ordinary civil action. It is
not clear whether this requirement persists under the new Civil Procedure Rules 1998 (UK)
('CPR'). See Halsbury’s Laws of England (4th ed, 2001 reissue) 1(1) Administrative Law, paras
6 'Public Law and Private Law: Why the Divide? A Personal View' [1986] Public Law 220,
7 Law Commission of Great Britain, above n 3, para 5.23. See also para 5.26. The Commission
reported that there had been 'widespread support for the proposal in that a specific time
limit was necessary to give effect to the principle of certainty' (para 5.23).

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