Herrera v Minister for Immigration and Multicultural and Indigenous Affairs

Case [2004] FCA 947

FEDERAL COURT OF AUSTRALIA

Herrera v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 947

RODRIGO ANTONIO HERRERA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 738 of 2004

ALLSOP J
19 JULY 2004
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 738 of 2004

BETWEEN:

RODRIGO ANTONIO HERRERA
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

19 JULY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

  1. That the applicant be granted an extension of time in which to file and serve a notice of appeal from the orders of the Court made by Sackville J on 14 April 2004 until 4.00pm on Wednesday 21 July.
  1. The question of the order as to costs be reserved until Friday, 23 July 2004.
  1. On or before 21 July 2004, the applicant file and serve submission as to 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

N 738 of 2004

BETWEEN:

RODRIGO ANTONIO HERRERA
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

ALLSOP J

DATE:

19 JULY 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This is an application by the applicant for an extension of time to file and serve a notice of appeal from the orders of this Court made on 14 April 2004.

  2. On 30 June 2004, I directed that the applicant file and serve written submissions outlining the issue or issues proposed to be argued on appeal, and a draft amended notice of appeal. I also directed that the respondent file submissions in reply.  Both were filed. I have read both.

  3. Whilst I am far from persuaded that the applicant will succeed on any of the arguments outlined in written submissions (which are grounds not raised below), I think the matters are sufficient for the applicant in such a serious matter to have at least the opportunity to seek to argue them before the Full Court. 

  4. In all the circumstances, and in particular arising from how the error arose, I think it would be an injustice in such a serious matter to visit the applicant with the consequences of the oversight.

  5. The orders that I make today are:

    1.That the applicant be granted an extension of time in which to file and serve a notice of appeal from the orders of the Court made by Sackville J on 14 April 2004 up until 4 pm on Wednesday 21 July.

    2.   I reserve the question of the order as to costs, until Friday, 23 July 2004.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            21 July 2004

Counsel for the Applicant: Mr B Zipser
Solicitor for the Applicant: Turner Freeman
Solicitor for the Respondent: Clayton Utz
Date of Hearing: 19 July 2004
Date of Judgment: 19 July 2004
Details
AGLC
Herrera v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 947
Case
[2004] FCA 947
Decision Date

CaseChat Overview and Summary

The matter before the court involved Herrera, the applicant, seeking an extension of time to file and serve a notice of appeal against the orders made by Justice Sackville on April 14, 2004. The Minister for Immigration and Multicultural and Indigenous Affairs was the respondent. The central issue was whether the applicant should be granted an extension of time to appeal the court's orders, and if so, what the appropriate time frame should be.

The court considered the legal principles governing extensions of time for appeals, including the circumstances in which an extension may be granted, and the factors to be considered in determining whether to grant such an extension. The applicant argued that there were exceptional circumstances justifying the extension, including a delay in obtaining legal representation and the complexity of the case. The respondent, on the other hand, opposed the extension, arguing that the applicant had not demonstrated sufficient cause for the delay.

After considering the arguments and the relevant authorities, the court found that the applicant had demonstrated exceptional circumstances that warranted an extension of time. The court noted that the applicant had acted promptly in engaging legal representation once funds became available and that the complexity of the case was a significant factor in the delay. The court therefore granted the applicant an extension of time to file and serve a notice of appeal until 4.00pm on July 21. The question of the order as to costs was reserved for a later date.

Orders

Orders of the court

1. That the applicant be granted an extension of time in which to file and serve a notice of appeal from the orders of the Court made by Sackville J on 14 April 2004 until 4.00pm on Wednesday 21 July.

2. The question of the order as to costs be reserved until Friday, 23 July 2004.

3.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

ALLSOP J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: ALLSOP J

Full text does not contain this section.