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28 May 2020

Administrative law updater: The perils of procrastination

By Cain Sibley, Clare McNamara, Neil Cuthbert, and Aidan Higginson

Decision-makers should be aware of the consequences that can flow from undue delay in making a decision.

What is the problem decision-makers face?

Decision-makers must strive to make a decision within a reasonable time. Various consequences can flow from a delay in reaching an outcome in a given case. For example, where there has been undue delay in publishing a judgment or an administrative decision, the decision-maker must ensure that the reasons for the decision remain cogent and accurately refer to the evidence put before them.

In Von Schoeler v Boral Timber (No 2) [2020] FCAFC 13, the Full Federal Court found that the decision at first instance had been vitiated by an undue delay because the primary judge had failed to provide adequate reasons for his decision in light of an unexplained, six-year delay between the trial and decision. The Full Court described a delay of this magnitude as "deplorable".

How did Von Schoeler affect this?

Von Schoeler is a useful illustration of the way in which undue delay can infect the process of logical reasoning and thereby vitiate a final decision.

Justices Flick, Robertson and Rangiah emphasised that the circumstances in which delay will vitiate a decision continue to be rare. Delay, in and of itself, is not a ground for seeking to review or appeal a decision. There will ordinarily need to be a failure by the decision-maker to either give reasons or give adequate reasons such that the decision is unsafe.

The facts and decision in Von Schoeler

Ms Von Schoeler was employed by Boral Timber and alleged that she had been sexually harassed by other employees in 2009. The question for the Court was whether Boral was vicariously liable for the sexual harassment carried out by its employees.

The Federal Circuit Court dismissed Ms Von Schoeler's proceeding against Boral six years after the trial without giving any explanation for the six-year delay in publishing judgment. The primary judge also ordered Ms Von Schoeler to pay Boral's costs partly on a party-and-party basis and partly on an indemnity basis.

On appeal, the Full Federal Court set aside the decision of the primary judge and declared Boral to be vicariously liable for the sexual harassment found to be substantiated. In doing so, the Full Court pointed to multiple instances where the primary judge relied upon improper shortcuts in his reasoning and thereby appeared to "gravitate to the conclusion that was the easiest to make and express", including:

  • the primary judge's (irrelevant) consideration of whether Ms Von Schoeler would have been treated differently if she was a male, rather than considering "whether the incidents and events that Ms Von Schoeler alleged actually occurred"; and
  • the primary judge's tendency not to explain why the evidence of different witnesses had been accepted or rejected or preferred over other evidence, which was particularly important given the lapse of time).

The Full Court cautioned that avoiding undue delay is essential for the maintenance of open justice by ensuring that the decision does not create "tension, uncertainty and a sense of injustice" for the parties involved.

After Von Schoeler, here's what you need to remember

Although a defensible decision can still be made following a delay since an application or a hearing, there is a greater risk that the decision-maker's reasoning will provide grounds for review or appeal where there has been a significant delay between considering evidence and making the decision.

As the Full Court's decision in Von Schoeler demonstrates, in a situation where an undue delay has occurred, the decision-maker should take special care to ensure that they explain the consideration given to the evidence and the basis of their findings.

Decision-makers should also bear in mind that in the context of administrative decision-making, delay can have other consequences. Failure to make a decision within the time prescribed by legislation can result in the "deeming" of a decision which may give the Administrative Appeals Tribunal jurisdiction to hear a matter under section 25(5) of the Administrative Appeals Tribunal Act 1975. This might be the case even where the underlying legislation does not impose a deadline, but rather specifies that a decision should be made "as soon as reasonably practicable": see Re NNXF v National Disability Insurance Agency [2019] AATA 5552.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.