Cheer v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 911

FEDERAL COURT OF AUSTRALIA

Cheer v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 911

PATRICK JAMES CHEER v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N560 OF 2002

JACOBSON J
1 JULY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N560 OF 2002

BETWEEN:	PATRICK JAMES CHEER APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	1 JULY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time to file and serve the notice of appeal against the judgment of Raphael FM dated 22 May 2002 is allowed.

2.The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N560 OF 2002

BETWEEN:	PATRICK JAMES CHEER APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	1 JULY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application for extension of time to file and serve a notice of appeal.  The application was filed on 13 June 2002.  The time period for the filing of the notice of appeal expired on 11 June 2002 and accordingly the applicant is two days out of time for the filing of the notice.

2. The application is supported by an affidavit of Mr Melvin Newman, solicitor.  The affidavit was sworn on 13 June 2002.  The reason for the delay is set out in paragraph two of Mr Newman's affidavit.  He told his client on 6 June that an appeal had to be filed in court by 12 June 2002.  Mr Chami who appeared for the respondent submitted that the last time for filing the notice was 11 June.

3. Whether the notice had to be filed by 11 or 12 June 2002 seems to me to be not worthwhile debating.  I think that Mr Newman's explanation in paragraph two of his affidavit, namely that his client was unable to draw a cheque to put Mr Newman in funds is a sufficient explanation for the delay.  It was only 13 June 2002 that Mr Newman was informed by his client that he was able to raise one half of the sum required and in those circumstances Mr Newman proceeded to file this application.

4. I think I should take into account the fact that Mr Newman proceeded notwithstanding the fact that only half of the sum that he required was able to be raised by his client.

5. Mr Chami, for the Minister, accepted that there was only a very short delay and, as I understood his argument, he did not challenge what Mr Newman said in paragraph two but was critical of the fact that Mr Newman did not notify his client until 6 June 2002 that the appeal had to be filed in court within a matter of some five or six days.

6. Nonetheless, Mr Chami accepts that the delay is a very short one and the only prejudice he points to is that the Minister will incur legal expenses occasioned by these proceedings if I give leave to file and serve the notice of appeal out of time.

7. Under O 52 r 15 of the Federal Court Rules 1979 it is necessary for Mr Newman to show special reasons why leave should be given to file and serve the notice of appeal out of time.  In Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 at par 4, Mansfield J referred to a decision of the Full Court of this court in Jess v Scott (1986) 12 FCR 187 at 195. In that case, their Honours said that the discretion is enlivened wherever the court sees a ground, which justifies departure from the general rule in the particular case. Their Honours also said that the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is 21 days.

8. Mr Chami supplied me with a useful outline of written submissions.  He referred in paragraph 9 to relevant authorities on the meaning of the term "special reasons".  The effect of the authorities, which he sighted is that the court should have regard to the length of the delay involved in filing the notice for appeal, whether the respondent will suffer prejudice and the nature of the injustice to the applicant if he or she is denied the right to appeal.

9. As to the last mentioned consideration, there is authority that it may be necessary to consider the merits of the appeal in deciding whether or not a serious injustice would be done.  Mr Chami referred to authority for the proposition that the term "special reasons" is an elastic test suitable for application across a range of situations.

10. Mr Chami relied in particular upon submissions as to the lack of merit in the appeal.  In my view, although the prospects of appeal do not appear to be particularly strong, it seems to me that in light of the very short delay in filing and in view of the explanation given by Mr Newman the applicant has shown sufficient special reasons within the test to which I have referred above.

11. I will place a copy of Mr Chami's submissions with the papers.

12. Mr Chami asks for costs of the application.  Mr Newman concedes that he is seeking an indulgence from the court and in those circumstances I propose to order that the applicant pay the costs of the motion.

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

Associate:

Dated:             1 July 2002

Solicitor for the Applicant:	Newman & Associates
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	1 July 2002
Date of Judgment:	1 July 2002