CIVIL PROCEDURE — time — extension of time — judicial review — where judicial review relief added by amendment to existing claims in contract and tort — whether Uniform Civil Procedure Rules 2005 (NSW) r 59.10(4) displaces three-month time limit — whether “proceedings” means proceedings for judicial review — whether Civil Procedure Act 2005 (NSW), s 65 engaged
ADMINISTRATIVE LAW — remedies — discretionary factors — delay — where public school principal dismissed in 2022 for non-compliance with COVID-19 vaccination requirements — where delay of more than four years in seeking judicial review of dismissal — where delay explained by pendency of separate misconduct investigation and terms of offer of re-employment — where real risk that wrongful dismissal claim will fail without order quashing dismissal decision — where claim fairly arguable — where displacement of incumbent principal unlikely — whether extension of time necessary to do justice between the parties
WORDS AND PHRASES — “proceedings” — Uniform Civil Procedure Rules 2005 (NSW) r 59.10(4)
Quick Take
1In UCPR r 59.10, 'proceedings' means proceedings for judicial review. Subrule (4) is directed to statutes that fix their own time limits for review proceedings, such as s 4.59 of the Environmental Planning and Assessment Act 1979 (NSW). It is not engaged merely because judicial review relief is joined to contract or tort claims carrying a Limitation Act period, and the three-month limit applies prayer by prayer.
2Section 65 of the Civil Procedure Act 2005 (NSW) does not apply where the relevant limitation period expired before the proceedings were commenced. Its concern with prejudice to the defendant, and whether the new claim arises from substantially the same facts as claims brought in time, may still inform the discretion to extend time under r 59.10(2).
3Where statutory public sector employment is analogous to that in Jarratt v Commissioner of Police (2005) 224 CLR 44, a real risk that a wrongful dismissal claim will fail without an order quashing the dismissal decision gives the plaintiff a real interest in judicial review, even without seeking reinstatement. On the facts, a delay of over four years was reasonably explained by the pendency of a separate misconduct investigation and the terms of a re-employment letter.
