Boo17 v Minister for Home Affairs
[2018] FCA 1302
•8 August 2018
FEDERAL COURT OF AUSTRALIA
BOO17 v Minister for Home Affairs [2018] FCA 1302
Appeal from: Application for extension of time: BOO17 v Minister for Border Protection and Anor [2018] FCCA 99 File number: QUD 59 of 2018 Judge: LOGAN J Date of judgment: 8 August 2018 Catchwords: MIGRATION – application for extension of time – where both parties are disposed to allowing extension – s 37M of the Federal Court of Australia Act 1976 (Cth) – opportunity cost to the judiciary. Held – extension allowed. Legislation: Federal Court of Australia Act1976 (Cth) ss 37M, 37N, 37P
Migration Act1958 (Cth)
Date of hearing: 8 August 2018 Date of last submissions: 8 August 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 11 Counsel for the Applicant: Mr Keim SC with Ms Murphy Solicitor for the Applicant: Chand Lawyers Counsel for the Respondent: Mr B McGlade Solicitor for the Respondent: Minter Ellison ORDERS
QUD 59 of 2018 BETWEEN: BOO17
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
8 AUGUST 2018
THE COURT ORDERS THAT:
1.The application for an extension of time is adjourned for hearing in the November appeal period, on a date to be fixed by the Registrar after consultation with the parties.
2.Argument on the extension application is to be treated as if it were argument on the appeal, in the event that an extension were granted.
3.The applicant is to file and serve, on or before 31 August 2018:
(a)a supplementary outline of submissions of not more than 10 pages; and
(b)a supplementary application book.
4.On or before 28 September 2018, the first respondent file and serve:
(a)a supplementary outline of submissions, of no more than 10 pages; and
(b)any application for the admission of further evidence on the premise that argument on the application is to be treated as argument on the appeal;
(c)any related affidavit of evidence.
5.On or before 12 October 2018, the applicant file and serve any outline in reply, of not more than 10 pages.
6.The applicant’s draft amended notice of appeal, dated 6 August 2018, be placed on the Court file.
7.Liberty to apply.
8.Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised From Transcript)LOGAN J:
On 13 February 2018, the applicant applied for an extension of time within which to appeal against an order of dismissal of his application for judicial review made by the Federal Circuit Court on 16 January 2018. At the same time, he filed an affidavit in which an explanation in respect of a brief delay in respect of the filing of a notice of appeal was proffered.
It was not until 26 July 2018 that the appellant approached a firm of solicitors who came the following day to act for him at present. On the same day of that retainer, counsel was briefed for the purposes of appearing on the hearing of the extension of time application.
On 6 July 2018, the application was listed for hearing today, with a notice of listing being sent to the parties that day. That, in turn, was a sequel to standard form directions which were made by a Registrar, in anticipation of a listing during in the August sittings, on 4 June 2018.
The applicant did not file any outline of submissions within the time fixed by those directions. However, senior and junior counsel retained for the applicant moved with considerable dispatch after being briefed with the result that an outline of submissions, and a comprehensive one at that, in respect of the extension application was filed on 4 August 2018. The Minister had filed an outline on 2 August 2018. Obviously enough, the Minister did not have the benefit of the applicant’s outline at the time when his outline was prepared and filed.
Both the applicant and the Minister were disposed to agree to an adjournment of the hearing of today’s application. In part, it seems, that was influenced by the late receipt of the applicant’s outline of submissions; late not in the sense of late service but, rather, late in terms of the proximity of the hearing date. In part also, it seems, it was influenced by other issues such as convenience of counsel.
Though consensual, the proposal met with some initial resistance from me. It is necessary for the profession to understand the opportunity cost which attends the adjournment of any judicial proceeding in terms of work which might otherwise be able to be undertaken on the adjourned date.
These days, there is, as the Federal Court of Australia Act1976 (Cth) (Act) (s 37M) makes plain, an overarching purpose in relation to civil litigation. Perhaps that was always present, but it has been stated expressly nonetheless by Parliament. That Act also highlights a correlative duty on the part of the profession to advance that overarching purpose (s 37N). In turn, that means that consent of the parties may not, in a given case, itself dictate the granting of an adjournment (s 37P).
As to opportunity cost, that has never been greater for the Court than at present in relation to appeals or related applications for extension of time or leave to appeal in matters arising under the Migration Act1958 (Cth). That is a sequel to an era in which there were thousands of unauthorised maritime arrivals, as well as other cases giving rise to applications for asylum or Protection visas and the downstream effect of that. That effect was initially in public administration in the executive branch (including merits review or fast track review), then consequential judicial review applications in the Federal Circuit Court and now in turn, in the form of appeals to this Court. The resultant demand on the Court’s judicial resources for the exercise of appellate jurisdiction, or prospective exercise of appellate jurisdiction, has never been greater. With that demand, there is a very real potential for adverse impact on the expeditious disposition of a myriad of calls from other areas for the exercise of appellate jurisdiction.
Understanding this position, the parties came consensually to promote a position whereby, in the event of adjournment, argument on the application for extension would be treated as if it were argument on the appeal in the event that an extension were granted. That, coupled with the absence of controversy between the parties in relation to extension, was a tellingly persuasive consideration. I say that because, having regard to the applicant’s written submissions, the case is hardly one which one would reject out of hand because it was utterly hopeless.
Even if an extension were granted, any resultant appeal would come on, in the ordinary course, in the Court’s November sittings. The course promoted by the parties would, in substance, yield no different result in the sense that the Court will come to deal with the merits, if any, of an appeal if an extension is warranted, given the way argument is to be treated.
It is necessary to make consequential directions so as to further that particular end. In so doing, I note that neither party submitted that any exercise of appellate jurisdiction resultant from a grant of an extension ought to be undertaken by a Full Court comprised of three judges. That accords with my own impression of the case, having regard to the outlines of submissions filed to date by each of the active parties.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 24 August 2018
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