The Court may grant an extension of time for filing a judicial review application under section 477(2) if it considers it is in the interests of justice to do so. This usually involves inter alia a “reasonably impressionistic” examination of the merits. In FKV17 v Minister for Home Affairs [2022] FCAFC 93 case management orders were made for the determination of the extension of time issue and for a later hearing if the extension was granted. When the matter came before Judge Vasta (recently infamous for imprisoning family law parties for contempt), he effectively conducted a full hearing, found the grounds without substance and dismissed the application for a time extension.
My first reaction was what’s wrong with that? If the grounds fail then there can be no extension time.
Well, it actually raises some complicated admin law principles about the constitutional writs, “conflating of powers”, inferior courts and the High Court cases of Craig and Kirk. It also resulted in a 2:1 majority decision (in the Applicant’s favour) but even the judges in the majority had different reasons. However, the simplest explanation was given by Rangiah J at [153]: “In this case, the approach taken by the FCC judge to the application under s 477(2) of the Act was to determine whether the proposed grounds would ultimately succeed or fail, rather than to assess their prospects of success. His Honour did not suggest that the grounds were unarguable. His Honour determined that each ground “fails”, and refused an extension of time primarily for that reason. That approach conflated the Federal Circuit Court’s function under s 477(2) of determining an application for an extension of time with its function under s 476 of determining a substantive application. It must be concluded that the FCC judge misconstrued s 477(2) and thereby fundamentally misconceived the nature of the Federal Circuit Court’s function. Subject to the question of materiality [it was] the error was a jurisdictional error”.
Creative commons acknowledgment for the photograph.
