Applicant A17/2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1380

FEDERAL COURT OF AUSTRALIA

Applicant A17/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1380

Jess v Scott (1986) 12 FCR 187 applied
Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 distinguished
Bourke v State Bank of New South Wales [1995] FCA 139 cited
National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Queensland) (2001) 183 ALR 700 cited

APPLICANT A17/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, KEN NORTHWOOD, MEMBER, REFUGEE REVIEW TRIBUNAL and PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
V 996 OF 2003

SUNDBERG J
28 NOVEMBER 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 996 OF 2003

BETWEEN:

APPLICANT A17/2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

KEN NORTHWOOD, MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	SUNDBERG J
DATE OF ORDER:	28 NOVEMBER 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the first respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 996 OF 2003

BETWEEN:

APPLICANT A17/2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

KEN NORTHWOOD, MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	SUNDBERG J
DATE:	28 NOVEMBER 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant applied for review of the decision of the Refugee Review Tribunal affirming the decision of a delegate of the respondent that he was not entitled to a protection visa. On 10 June 2003 Selway J made the following orders:

   “1.      The applicant, by 17 July 2003:

   (a)If an extension of time within which to commence the proceedings is required, file and serve a notice of motion seeking an extension of time together with an affidavit by the applicant personally explaining the reasons for the delay in commencing the proceedings and deposing the reasons why an extension of time should be given. The notice of motion shall be made returnable for hearing at the next directions hearing.

   (b)file and serve an amended application specifying precisely the error or errors upon which the decision under review is challenged.

   (c)file and serve outline of submissions.

   (d)file and serve a memorandum stating:

   ·    the State or Territory in which the applicant is residing;

   ·    whether the applicant wishes to be present at the hearing of the application;

   ·    whether the matter is one that could be transferred to the Federal Magistrates Court;

   ·    whether the applicant objects to transfer to the Federal Magistrates Court and, if so, the grounds for objection.

   2.In the event that an extension of time is sought, the respondent is at liberty, within 2 weeks of receiving the notice of motion, to file and serve an affidavit in opposition to the extension of time.

   3.The respondent within 3 weeks of receiving the applicant’s submissions pursuant to par 1(c) above, file submissions in reply.

   …

   5.In the event that order 1 is not fully complied with, the applicant will be called upon at the adjourned directions hearing to show cause why the matter should not stand dismissed.

   …”

   In relation to par 1(a) of the order it is common ground that an extension of time is required.

2. On 1 August 2003 Lander J extended to 28 August 2003 the time for compliance with paragraph 1 of the orders made by Selway J on 10 June 2003. On 5 September 2003 the applicant’s present solicitor filed a notice of appearance. On the same day Marshall J ordered that:

   “1.The time in which the applicant has to comply with paragraph 1 of the orders made by Selway J on 10 June 2003 is extended to 19 September 2003.

   …

   3.In the event that Order 1 of the orders of Selway J as varied is not fully complied with, the application will stand dismissed.”

3. On 19 September the applicant filed an amended application, his contentions of fact and law and a memorandum pursuant to par 1(d) of Selway J’s order. He did not file a notice of motion or an affidavit, and the self executing order made on 5 September took effect. In Marshall J’s reasons of 8 October he said that in making the order on that day that the application be dismissed, he was simply confirming the effect of the self‑executing order. His Honour’s reasons contain this passage:

   “On 5 September 2003, I informed the solicitor for the applicant that I had come very close to dismissing the application on that day for the applicant’s continued failure to comply with orders of this Court. I further informed the solicitor that the applicant was to have one last chance to comply with an order of the Court. He consented to the order of 5 September 2003 on that basis but has not fully complied with it. Accordingly, the application for an order nisi stands dismissed. I reject the oral application of the solicitor for the applicant for him to have further time to comply with para 1(a) of the orders of Selway J.”

4. As appears from the above chronology, Selway J’s order gave the applicant five weeks to file the various documents. Nearly four months have elapsed since the expiration of that period and par 1(a) of the initial order has still not been complied with. From the very first set of directions the applicant has been on notice that there was a risk of dismissal if order 1 was not complied with. See order 5. Two extensions of time have been granted, and at the time of granting the second extension Marshall J informed the applicant’s solicitor that this was his “last chance”. According to his Honour the solicitor consented to the order of 5 September on that basis.

5. On 3 November 2003 the applicant applied for an extension of time in which to file a notice of appeal from Marshall J’s order. Order 52 rule 15 of the Federal Court Rules provides in part:

   “(1)     The notice of appeal shall be filed and served ‑

   (a)within 21 days after ‑

   (i)the date when the judgment appealed from was pronounced;

   …

   (b)within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.

   (2)Notwithstanding anything in the preceding sub‑rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.”

6. The applicant’s solicitor’s affidavit in support of the application for an extension of time under rule 15(2) says that although he participated in the proceedings of 8 October by telephone link, and thus heard Marshall J’s reasons for dismissing the application, he had not received a written copy of the reasons until 13 October. He says:

   “I was precluded from filing a Notice of Appeal not knowing the reasons and the circumstances leading to the decision of … Justice Marshall as delivered on 8 October 2003 and sent to me by mail by the District Registry of the Federal Court of Australia was received by me on 13 October 2003.

   I verily believe the time limit of 21 days to appeal against the decision of … Justice Marshall should hence be reckoned from 13 October 2003.
   …
   Failure to obtain an extension of time would otherwise be fatal.”

7. The grounds of appeal in the draft notice of appeal accompanying the affidavit are:

   “i.Filing of affidavit setting out the reasons for non‑compliance with par 1(a) of the orders of … Justice Selway was due to an oversight caused by human error.

   ii.The order of … Justice Selway was directed to the question of time and that be extended as the justice of the case requires.

   iii.The failure to grant to obtain an extension of time to comply with that part of the order of … Justice Selway would otherwise be fatal.”

8. In order to obtain an extension of time the applicant must show “special reasons”. The power contained in Order 52 rule 15(2) is discretionary. The meaning of the expression “special reasons” is explained in Jess v Scott (1986) 12 FCR 187 at 195 as some reason that “takes the case out of the ordinary”. I am not satisfied that “special reasons” have been shown. The applicant’s solicitor’s explanation for the delay is not convincing. He heard the judgment being delivered on 8 October. He heard the order then made dismissing the application. He knew why it was being dismissed, not only because he heard the reasons for the dismissal, but because he was well aware of the warning he had been given on 5 September that the extension then granted was “the last chance”. He knew the 5 September order was a self executing order. Further, because he was familiar with the case, he had ample time from 13 October (sixteen days) to read the brief written reasons (three and a half pages) and obtain instructions. I simply do not accept that while the solicitor was able to convey the result of the 8 October proceedings to his client, he was unable to “instruct him as to the remedies available” until he had received the written reasons. In any event, he was able to do that as from 13 October.

9. The present case is unlike Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 where an extension of time was granted in circumstances somewhat similar to this case. There the “special reason” advanced was that although the applicant was present when judgment was given ex tempore on 9 May 2001, he did not receive the reasons in a hard copy form until 16 September 2001. He then promptly applied for an extension of time to appeal. Mansfield J found special reasons were constituted by the fact that at material times the applicant “has been in immigration detention”, required the assistance of an interpreter, and had limited knowledge of law and practice. In the present case the applicant has not been in detention, has at all material times been represented by a solicitor, and received the written reasons sixteen days before the expiration of the time within which to appeal.

10. Because special reasons have not been shown I have no power to grant an extension of time. If the circumstances relied on by the applicant’s solicitor could somehow amount to special reasons, I would have refused to grant an extension of time in the exercise of my discretion. Relevant matters militating against a favourable exercise of discretion are:

    ·the repeated failure of the applicant to comply with the Court’s orders

    ·the extensions of time that have been granted

    ·paragraph 5 of Selway J’s orders

    ·Marshall J’s “last chance” warning

    ·the fact that the applicant’s solicitor consented to the 5 September orders

    ·the absence from the draft notice of appeal of any assertion of error on the part of the primary judge

    ·the prospects of success on appeal are slight, especially as Marshall J’s decision was a discretionary judgment on a matter of practice and procedure (as to which see Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 393‑394).

11. Counsel for the respondent contended that Marshall J’s dismissal of the application was an interlocutory order, so that leave to appeal is required. This may well be the case. See Bourke v State Bank of New South Wales [1995] FCA 139 and cf National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Queensland) (2001) 183 ALR 700 (dismissal for want of prosecution interlocutory). I need not decide whether leave to appeal is required. If it were, I would not have given leave for the reasons set out in [10].

12. The application for an extension of time is refused.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:             28 November 2003

Solicitor for the Applicant:	C Weerakoon
Counsel for the First Respondent:	Dr S Donaghue
Solicitors for the First Respondent:	Clayton Utz
Date of Hearing:	14 November 2003
Date of Judgment:	28 November 2003