Drs J.J. Sullivan, N.J. Nicolaides and Partners v Minister for Health, Housing & Community Services

[1993] FCA 1014

IN THE FEDERAL COURT OF AUSTRALIA	)
gUEENSLAND DISTRICT REGISTRY	) No QG197 of 1993
GENERAL DIVISION	1

BETWEEN: DRS J.J. SULLIVAN, N.J. NICOLAIDES AND PARTNERS

Applicant

AND:  MINISTER FOR HEALTH, HOUSING AND COMMUNITY SERVICES

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER: SPENDER J

DATE OF ORDER: 9 DECEMBER 1993

WHERE MADE:  BRISBANE

THE COURT ORDERS THAT:

1.   The time within which the applicant must file and serve a notice of appeal from the decision of the Administrative Appeals Tribunal given on 26 October 1993 be extended until 4 pm on 10 December 1993.

2.    The applicant pay the respondent's costs of the application to extend time, to be taxed if not agreed.

Note:	Settlment of orders is dealt with in 0. 36 of the
Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA )

QUEENSLAND DISTRICT REGISTRY	)	NO QG197 of 1993
GENERAL DIVISION	)

BETWEEN: DRS J.J. SULLIVAN, N.J. NICOLAIDES AND PARTNERS

Applicant

AND: MINISTER FOR HEALTH. HOUSING AND COMMUNITY SERVICES

Respondent

CORAM:	SPENDER J
PLACE :	BRISBANE
DATE :	9 December 1993

EX TEMPORE REASONS FOR JUDGMENT

I propose to grant leave to extend. The order that I make is that the time within which to file and serve a notice of appeal from the decision of the Administrative Appeals Tribunal given on 26 October 1993 referred to in paragraph 1 of the application filed on 2 December, 1993, be extended until 4 pm on 10 December 1993.

In relation to the question of whether I should extend time,

I have had regard to the various matters referred to by Wilcox

J in Hunter Vallev Develo~ments Ptv Ltd v Cohea (1984) 3 FCR 344

at 348-9, and to the observations to which Miss Dalton for the applicant for leave referred me, namely, v Commonwealth

Bank (1990) ATPR 41-026, particularly at 51,420-1

and the observations of Foster J in Re~atriation Commission v
Tuite (1992) 37 FCR 571 at 576-7.

The difficulty for the applicant on the leave application is whether there has been an acceptable explanation for the delay. I think that a fair analysis of the material before me is that until Dr Musgrave was told on 25 November 1993 of what had occurred in relation to proceedings in the Administrative Appeals Tribunal in Melbourne in Dorevitch Patholow Ptv Ltd v. Minister of Health, Housina. Local Government and Communitv Services Administrative Appeals Tribunal Nos 93/351, 93/352 and 93/353 , an appeal was not to be prosecuted.

Whether that communication to him on 25 November 1993 was outside the 28 day period within which to appeal is not clear. The decision in respect of which leave is sought was handed down on 26 October. I am not at all sure when that decision came to the notice of the applicant for leave. It may be that it happened on that day or it may be that it happened some time thereafter. It certainly happened before 5 November, because on that day, the solicitors for the applicant for leave informed solicitors acting for the respondent in the present leave

the AAT in Queensland.

application that there would be no appeal from the decision of

I think that it is fairly to be inferred from the material that, notwithstanding that a decision not to appeal had been made during the 28 day period, that decision was altered to one to seek leave to appeal as a consequence of learning the approach adopted by the AAT in Melbourne. That alteration of view occured at a time very close to the expiration of the 28 day appeal period, although I think it is probable that it occurred shortly

after rather than shortly before the expiration of the appeal
period.

How the approach of the AAT in Dorevitch affects the applicant's prospects of success in this present appeal, is a different matter. Having regard to the possible consequences to the respondent if leave is not granted, the very short delay between the expiry of the 28 day period and time when the Australian Government Solicitor was informed that an application for an extension of time within which to appeal would be made, the reason for the delay, the absence of prejudice, and the nature of the appeal that the applicant for leave wishes to prosecute, I should grant leave. However, the applicant for leave shall pay the respondent's costs of the application for leave to extend, to be taxed if not agreed.

I certify that this and the

preceding two (2) Page are a true copy of the reasons for judgement

of the Honourable Mr Justice

Spender.

Date: 9 December 1993

Counsel for the applicant: MS J. Dalton
Solicitors for the applicant: Minter Ellison Morris Fletcher
Counsel for the respondent: Mr J. McGill
Solicitor for the respondent: Australian Government Solicitor