Introduction

In order to understand a rule or law, it is often necessary to look at how other cases which apply that rule or law have been decided.

This factsheet provides summaries of cases which may be of assistance in understanding the law in relation to applications for extending time limits in civil litigation.  The first part looks at how particular provisions contained in an Act or Regulation have been interpreted, while the second part examines general principles from the case law.

You should always refer to the full version of a case before relying upon it. These judgments referred to below can be accessed for free online at www.austlii.edu.au.

This factsheet should be read in conjunction with the factsheet on Extensions of Time - Limitations of Actions 1974.

How extension provisions have been interpreted

Uniform Civil Procedure Rules 1999 (Qld), rule 7(1)

• Westpac Banking Corporation v Commissioner of State Revenue [2005] QCA 327: Rule 7(1) cannot be used to extend or avoid a time limit for doing an act, which is fixed by statute. Rule 7(1) is limited to a time set under the Uniform Civil Procedure Rules 1999 (Qld) or by an order of a court or judge.
• Mango Boulevard Pty Ltd v Spencer [2007] QSC 276: The Court has jurisdiction under rule 7 and rule 668 to provide relief against the consequences of a self-executing order.
• FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 268 at 283: Rule 7 grants a Court a broad power to give relief against injustice.  It is to be used with caution and with regard to the public policy concern that litigation be final and the principle that orders are made to be observed.

Limitation of Actions Act 1974 (Qld), Sections 30(1)(c) and 31(2)

• Carter v Co of the Sisters of Mercy of Diocese Rockhampton [2001] QCA 335: The plaintiff claimed that she had no knowledge that the sexual abuse that she had been subjected to as a child had led to the development of psychiatric illness, until it had been brought to her attention by a psychiatrist a significant amount of time after the limitation period for her claim had expired. The Supreme Court of Queensland held that the time period would not be extended, because she had been ignorant of the connection between her abuse and her mental illness, and that she should have taken reasonable steps to discover the source of her condition.

Furthermore, the court refused to use its discretion to extend the relevant limitation period on the grounds of potential prejudice to  the defendant that might  be caused by the delay in bringing the action.

• N v Queensland [2004] QSC 290: The same limitation period as considered in Carter v Co of the Sisters of Mercy of Diocese of Rockhampton [2001] QCA 335, was extended on the grounds that a reasonable person in a similar situation as the plaintiff would have been reluctant to take steps to discover the material fact. In this case, the plaintiff had been abused as a child whilst in institutionalized care.

In relation to the potential prejudice to the defendant due to the death of witnesses, the Court held that prejudice did not exist as the facts of the case could be obtained by referring to the unusually detailed newspaper articles.

Therefore in negligence cases, an extension of a limitation period will generally only be granted where (1) it is not possible for the plaintiff to know that the negligent act resulted in harm, and (2) an extension will not cause prejudice to the defendant.

Limitation of Actions Act 1974 (Qld), Sections 31(2)(a) and 31(2)(b)

• Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541: Even if the requirements set out in ss 31(2)(a) and (b) are satisfied, this does not mean that an applicant can assume that he/she has a right to be granted an extension of time. The Court held that s31(2) gives discretion to the Court to grant an extension of time.

Judicial Review Act 1991 (Qld), Section 26

• Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663: Proceedings commenced after the limitation period has expired should not be considered unless the applicant gives an acceptable reason for the delay, and that it would be fair in the circumstances to extend the time. When thinking about granting an extension of time, The Court looks at the worthiness of the application.

Administrative Decisions (Judicial Review) Act 1991 (Cth), Section 11(3)

• Hunter Valley Development Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344: Justice Wilcox looked at a number of non-exhaustive criteria which help the court to decide whether or not to exercise its discretion to grant an extension of time: 

1. The court will not grant the application unless satisfied that it is appropriate to do so.  The applicant must show “an acceptable explanation of the delay” and also that it is “fair and equitable in the circumstances” to extend the time limit.
2. Whether any action has been taken by the applicant apart from the application to extend time.
3. Whether extending time would cause any prejudice to the respondent.
4. The mere absence of prejudice is not enough to justify the grant of an extension.
5. The merits of the substantive case.
6. Considerations of fairness as between the applicant and other persons in a like position.

Administrative Appeals Tribunal Act 1975 (Cth), Section 44

• McGregor v Chief Executive Officer of Centrelink [2005] FCA 791: Justice Spender relied on Gallo v Dawson (1990) 64 ALJR 458. It was found that discretion under section 44 of the Act can only be exercised in favour of an applicant where it can be shown that strict compliance with the rules cause injustice to the applicant. In order to determine whether the rules will cause injustice, it is necessary to consider the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences to the parties if an extension of time is granted or refused.
• Agar v Australian Postal Corporation (1998) 56 ALD 361: An excessively strict approach to a limitation period in legislation should not be taken as this may result in an unjust outcome.

Anti-Discrimination Act 1991 (Qld), Section 138

• Brown v McArthur [2002] QSC 236: This case addressed a complaint of sexual harassment made against a massage therapist. The complaint was made outside of the limitation period. The Court refused to hear the complaint. Despite a pattern of serious ongoing sexual harassment, this matter could not be considered on public interest grounds because the Commissioner was only permitted to focus on the current single complaint before her.
• Buderim Ginger Ltd v Booth [2001] QSC 349: The Commissioner accepted a complaint made by Mr Sealey two years after Buderim Ginger’s alleged act of discrimination against him.   The issue was whether there was enough evidence to support that “good cause” had been shown by Mr Sealy, to warrant the Commissioner granting a time extension of almost one year in accordance with S138(2).  The Court said the relevant factors in determining good cause are subjective but will always include: the length of the period by which the complaint is out of time, the logic of any explanation for not making the complaint within time, any prejudice that the respondent may suffer by reason of the late complaint, the apparent strength of the complaint, and the fact that s138 expects complaints to be laid within one year.  In this case, the Commissioner expressly overlooked the apparent strength of the complaint, and held that there was no reasonable explanation for Mr Sealy’s two years delay in bringing the complaint.  The Court ultimately held that evidence was insufficient to justify that Mr Sealy’s explanation for his delay amounted to good cause. 

Federal Magistrate Court Rules 2001 (Cth), Rule 3.05

• Hyunh v Conlan (2005) 224 ALR 725: When considering extension of time applications under Rule 3.05, the test to be applied is ‘which order would, in the context of the particular case, be favorable to the interests of justice?’  This involves asking whether the applicant has ‘an acceptable explanation for the delay’, and whether it would be ‘fair and equitable in the circumstances’ to grant the extension. The Court took into account the fact that the applicant was unable to speak or read English, was unable to understand the proceedings, and had suffered a marital breakdown and subsequent divorce shortly before the events. She had sought advice from persons who were either unable to properly assist her, or unable to properly understand the issues. The applicant had good prospects of success in relation to her claim and the delay was not great. The Court granted the time extension under Rule 3.05 on the grounds that it was in the interests of justice.
• Gallo v Dawson (1990) 93 ALR 479 at 480–1: The behaviour of the parties, the nature of the litigation, and the consequences to the parties of the grant or refusal of the application for an extension of time should be considered.  This means that any prejudice to the opposing party as a result of the delay, as well as public considerations, must be taken into account. If the extension of time is required in relation to filing an appeal, it is necessary to consider the prospects of the applicant’s success upon appeal. There must be material which will satisfy the Court that refusing to grant the extension would cause injustice.

General principles from case law

Onus of proof

Hickey v Australian Telecommunications Commission (1983) 72 FLR 291: The onus is on the applicant to prove that an extension of time should be granted. It is not for the respondent to establish that the applicant does not have a case for extension.

Acceptable explanation for delay

• Carter v Queensland Community Corrections Board (unreported, QSC 3269 of 1999): An attempt to avoid an internal review process is not an acceptable explanation for a delay.  In this instance, the delay was 27 days.
• Pickering v Deputy Federal Commissioner of Taxation (1999) 42 ATR 709: The fact that a matter is left in the hands of another (i.e. financial advisor), is not a reasonable explanation for delay. In this instance, the delay was over one year.
• Sita v Queensland Transport (unreported, QSC 10350 of 1996): Citing a misleading letter from Queensland Transport in relation to a tender process was not enough to defend a delay of 20 months.
• Jobson v Queensland Corrective Services Commission (unreported, QSC 434 of 1994): The failure to pay the $150 application filing fee was not acceptable as a reason for the 12 day delay.
• Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663: A corporation relied on the fact that its director had been hospitalized with pneumonia and severe asthma as an excuse for delaying the filing of an application. The director was released from hospital on 2 July 1992, and failed to call a directors meeting prior to 29 July 1992. The Court was unimpressed with this explanation.
• Easterday v Australian Securities Commission (1996) 43 ALD 781: The appellant’s explanation for delay in not lodging a notice of appeal was that, because he was an unrepresented litigant, he did not have the necessary time to research, prepare, file and serve the notice of appeal.  The existence of other commitments is not sufficient to establish an explanation of delay.

Likelihood of success

• Burns v Grigg [1967] VR 871 at 872: When the application is for an extension of time to file an appeal, it is  necessary to consider the prospects of the applicant succeeding in the appeal.

Injustice caused by a strict compliance with the law

• Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92: If the failure to appeal in time is due to a mistake of a legal adviser this may be sufficient to justify the Court in to grant an extension of time. It is up to the person seeking the extension to satisfy the Court that in all the circumstances the justice of the case requires an extension. The Court has a wide discretion and should have regard to the whole history of the matter, the conduct of the parties, the nature of the litigation, the need of the applicant, and the effect that granting an extension would have on other persons involved.

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