Hu v Giles - [2010] FCA 174

FEDERAL COURT OF AUSTRALIA
Hu v Giles [2010] FCA 174

Citation: Hu v Giles [2010] FCA 174

Parties: YUAN YUAN HU v CHRISTINE GILES and COMMONWEALTH OMBUDSMAN

File number: QUD 293 of 2009

Judge: LOGAN J

Date of judgment: 26 February 2010

Catchwords: PRACTICE AND PROCEDURE – Application for extension of time within which to appeal from Federal Magistrates Court – Delay in furnishing to Applicant revised copy of Federal Magistrates Court’s oral reasons – Absence of merit in proposed appeal grounds – Extension of time refused

Legislation:
Ombudsman Act1976 (Cth) s 6
Migration Act 1958 (Cth)

Federal Court Rules

Cases cited: Jess v Scott (1986) 12 FCR 187 applied
Hu v Commonwealth Ombudsman [2009] FCA 1516 followed
Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 considered

Date of hearing: 26 February 2010

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 29

Counsel for the Applicant: The Applicant appeared in person

Solicitor for the Respondents: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 293 of 2009

BETWEEN:
YUAN YUAN HU
Applicant

AND:
CHRISTINE GILES
First Respondent

COMMONWEALTH OMBUDSMAN
Second Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

26 FEBRUARY 2010

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The Application is dismissed.
2.The Applicant is to pay the Respondent’s costs of and incidental to the application to be taxed, if not agreed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 293 of 2009

BETWEEN:
YUAN YUAN HU
Applicant

AND:
CHRISTINE GILES
First Respondent

COMMONWEALTH OMBUDSMAN
Second Respondent

JUDGE:

LOGAN J

DATE:

26 FEBRUARY 2010

PLACE:

BRISBANE

REASONS FOR JUDGMENT

Mr Hu who is the Applicant today, seeks an extension of time under the Federal Court Rules within which to appeal against a decision given in the Federal Magistrates Court last year. An extension of time is necessary because the prima facie period of twenty-one (21) days after the decision of the lower court was given has well and truly passed. That is not an insurmountable hurdle, but it is nonetheless a hurdle.
The leading authority in relation to the granting of an extension of time within which to appeal is a decision of the Full Court of this Court, Jess v Scott (1986) 12 FCR 187. I note that neither party suggests otherwise than that this decision contains an appropriate survey of principle. That this is so in respect of the submissions of a litigant in person is but one of a number of commendable features in relation to the way in which Mr Hu presented his submissions both orally before me today and earlier in written submissions lodged by direction. It is a mark of his attention to the requirements of the rules and governing principles that he has himself…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hu v Giles

Details

AGLC: Hu v Giles [2010] FCA 174
Case: [2010] FCA 174
Decision Date

CaseChat Overview and Summary

Yuan Yuan Hu, the applicant, sought an extension of time to appeal a decision from the Federal Magistrates Court in the Federal Court of Australia. The application was necessary as the twenty-one-day period to appeal had already expired. The court was required to decide whether to grant the extension based on the factors outlined in Jess v Scott (1986) 12 FCR 187. The applicant argued that there was a reasonable explanation for the delay, citing the forty-day lapse in receiving written reasons for judgment from the Federal Magistrates Court. The court acknowledged that there was a delay in providing written reasons, but it did not find it to be a significant factor in granting the extension. The court also considered the merits of the proposed appeal and found that the applicant's arguments lacked sufficient merit to warrant an extension.

The Federal Court of Australia, presided by Logan J, dismissed the applicant's application for an extension of time. The court found that the delay in providing written reasons for judgment did not justify the grant of an extension, and the proposed appeal did not have sufficient merit. The court further noted that the applicant had pursued other remedies before applying for an extension of time. The applicant was ordered to pay the respondents' costs of and incidental to the application to be taxed if not agreed.

Orders