Howard v Australian Electoral Commission

FEDERAL COURT OF AUSTRALIA

Howard v Australian Electoral Commission [2000] FCA 1767

PRACTICE & PROCEDURE – application for extension of time to file and serve a notice of appeal – whether there were “special reasons” justifying extension – whether discretion should be exercised to dismiss application despite “special reasons” – factors to be considered in exercising discretion include the importance of the questions sought to be raised, the bona fides of the proposed appeal and the strength of the proposed grounds

Commonwealth Electoral Act 1918, s 93(1)
Federal Court Rules, O52 r 15

Jess v Scott (1986) 12 FCR 187, followed

SUSAN ANNE HOWARD v AUSTRALIAN ELECTORAL COMMISSION
N 1171 of 2000

BRANSON J
SYDNEY
29 NOVEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1171 of 2000

BETWEEN:	SUSAN ANNE HOWARD APPLICANT
AND:	AUSTRALIAN ELECTORAL COMMISSION RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	29 NOVEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time to file and serve a notice of appeal be dismissed.

2.        The applicant pay the 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
NEW SOUTH WALES DISTRICT REGISTRY	N 1171 of 2000

BETWEEN:	SUSAN ANNE HOWARD APPLICANT
AND:	AUSTRALIAN ELECTORAL COMMISSION RESPONDENT

JUDGE:	BRANSON J
DATE:	29 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time within which to file and serve a notice of appeal from a judgment of Mathews J given on 10 October 2000. The application was made on 2 November 2000, that is only two days outside the time provided by the Federal Court Rules for the filing and serving of an notice of appeal. Mathews J dismissed the applicant’s appeal from a decision of the Administrative Appeals Tribunal which affirmed a decision of an Australian Electoral officer under section 120(6) of the Commonwealth Electoral Act 1918 (“the Act”), which had itself affirmed an earlier decision to reject the applicant’s application for enrolment on the Australian electoral roll.

2. Her Honour summarised the factual background to the appeal before her as follows:

   “Ms Howard was born in England on 4 September 1950.  She arrived in Australia eight years later and, apart from a period of approximately one year, has remained in Australia ever since.  She is a British subject and has not taken out Australian citizenship.  Between 1973 and 1977 her name was on the electoral roll in the Parramatta Division, being the area where she then lived.  At that time, British subjects were entitled without restriction to have their names entered on the electoral roll in Australia.

   Ms Howard returned to England for about a year between the middle of 1978 and the middle of 1979.  Her name appeared on the electoral roll in September 1977 but was not on it when the next roll was issued in August 1979.  She…