Kristoffersen v Department of Employment Workplace Relations and Small Business
[2002] FCA 755
•14 JUNE 2002
FEDERAL COURT OF AUSTRALIA
Kristoffersen v Department of Employment Workplace Relations & Small Business [2002] FCA 755
APPLICATION FOR AN EXTENSION OF TIME – applicant seeks an extension of time to file and serve a notice of appeal against a judgment of a single judge of the Court – application filed out of time as applicant self-represented and unaware of time limit – whether the delay is lengthy – whether there is potential prejudice to the respondent – whether there are “special reasons” for granting an extension of time – whether applicant is able to demonstrate any prospect of success in the appeal he seeks to prosecute
WORDS & PHRASES – “special reasons”
Freedom of Information Act 1982 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, cited
Jess v Scott (1986) 70 ALR 185, followed
Salter Rex & Co v Ghosh [1971] 2 QB 597, cited
Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257, cited
Ratnam v Cumarasamy [1964] 3 All ER 933, cited
Zocchi v The Queen [2000] 116 A Crim R 245, citedKURT MICHAEL KRISTOFFERSEN v DEPARTMENT OF EMPLOYMENT WORKPLACE RELATIONS AND SMALL BUSINESS
No Q 40 of 2002
SPENDER J
BRISBANE
14 JUNE 2002
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 40 OF 2002
BETWEEN:
KURT MICHAEL KRISTOFFERSEN
APPLICANTAND:
DEPARTMENT OF EMPLOYMENT WORKPLACE RELATIONS AND SMALL BUSINESS
RESPONDENTJUDGE:
SPENDER J
DATE OF ORDER:
14 JUNE 2002
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The application for an extension of time within which to appeal is dismissed, with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 40 OF 2002
BETWEEN:
KURT MICHAEL KRISTOFFERSEN
APPLICANTAND:
DEPARTMENT OF EMPLOYMENT WORKPLACE RELATIONS AND SMALL BUSINESS
RESPONDENT
JUDGE:
SPENDER J
DATE:
14 JUNE 2002
PLACE:
BRISBANE
REASONS FOR JUDGMENT
On 8 March 2002 Mr Kristoffersen lodged an application for an extension of time to file and serve a notice of appeal against a judgment of Kiefel J given on 8 February 2002, in which her Honour dismissed the applicant’s appeal against the decision of the Administrative Appeals Tribunal (“the Tribunal”) refusing him access to a number of specified documents in response to his application under the Freedom of Information Act 1982 (Cth) (“the FOI Act”).
That application was not accepted on 8 March because, amongst other things, Mr Kristoffersen had not provided a proper address for service. Following amendment, it was filed on 22 March 2002. The affidavit of Mr Kristoffersen sworn 4 March 2002 in support of the application for an extension of time contains the following:
“Late appeal from a decision of a single judge of the Federal Court.
I was unaware of a time limit on making an appeal.
I was preparing my appeal and ran out of time.”
In an affidavit sworn on 7 May 2002 and filed on 20 May 2002, Mr Kristoffersen says:
“5.I withdraw my “Application for Extension of Time to file and serve Notice of Appeal”, filed and served on the 22nd of March, 2002. I also withdraw my “Notice of Appeal”, lodged at the Federal Court Registry on the 4th of March, 2002. The application relates to my appeal from a single judges decision in regards to the release of my personal records held by the Department of Employment and Workplace Relations and Small Business, to a full court decision in regards to Federal court matter “Kurt Micheal Kristoffersen v Department of Employment Workplace Relations and Small Business, Federal Court File No. Q 40 of 2002. This withdrawal is pending the outcome of the federal police investigation into the actions of the authors of the claimed exempt documents and the outcome of possible charges brought against the authors for crimes under the crimes act 1914, The Social security Act and liable laws.
6.I have documented and registered factual information to the Federal Court Registrar, backed by true evidence and hard copy. This registered evidence and hard copy is contrary to the information Justice Kiefel J has documented, based her decisions on and is currently on record in the Federal Court library. I demand under section 48 of the ‘Freedom of Information act’ that the corrections to the Federal Court Records be Initiated and further declare my appeal pending those corrections and my section 48 (F.O.I. act fed) request.”
On the same day, 20 May 2002, Mr Kristoffersen filed a further document headed “Applicants Amended Grounds of Appeal”. This document bears the date “13/8/01”. The eighteen grounds in that document bear a more than passing likeness to many of the grounds contained in a document headed “List of Grounds for Amendment of Appeal” relating to the appeal dated 13 August 2001, being the grounds of appeal on which Mr Kristoffersen sought to rely before Justice Kiefel.
Notwithstanding the indication that he wished to withdraw his application for an extension of time after discussions with registry staff which, amongst other things, referred to the possible implications for costs, Mr Kristoffersen argued for an extension of time before me on 21 May 2002. I have considered all of the material put before me and have concluded that an extension of time within which to appeal ought not be granted.
The proposed notice of appeal which was served on the solicitors for the respondent contains the following:
“(a)Unreasonable regard to incorrect facts resulting in conclusions that distorted her Judgment.
(b)Failure to consider procedural fairness in the context of the facts presented.
(c)Undue weight to unevidenced statements of facts that were flawed, resulting a flawed decision.
(d)Not considering the definitions as defined in the F.O.I. Act.”
Under the heading “Orders Sought”, the following appears:
”(a) The appeal be upheld as based in true facts, evidence and law.
(b)The respondent release the applicants personal information, all of it.”
Wilcox J discussed at some length the matters which, in his opinion, were deserving of consideration when considering an application for leave to extend the time within which to file a notice of appeal: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The matters which attracted his Honour’s attention were set out at 348-349:
1.applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;
2.action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3.any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4.however, the mere absence of prejudice is not enough to justify the grant of an extension; and
5.the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
Jess v Scott (1986) 70 ALR 185 was another case in which the judge at first instance had dismissed two proceedings that had been brought by the applicant. The applicant’s solicitor received, in due time, instructions to file a notice of appeal to a Full Court of this Court but, due only to the fault of the solicitor, the notice of appeal was filed on the day after the last day limited for its filing. The applicant sought an extension of time pursuant to O 52 subr 15(2) of the Rules of Court. It was accepted by the Court that the delay in the filing of the notice was the fault of the applicant’s solicitor; it was also accepted that the respondent had not suffered any prejudice as a result of the delay of one day. Nevertheless, the respondent’s opposition to the application was based substantially upon an argument that the words “for special reasons” in subr 15(2) should be given a stringent interpretation. The Full Court traced the history of those cases where delay had occurred through the fault of a legal adviser, noting how the hard-line views of earlier times had softened materially, as reflected by the words of Lord Denning in Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601:
“So Dr Ghosh is out of time. His counsel admitted that it was his, counsel’s, mistake, and asked us to extend the time. If Dr Ghosh had any merits which were worthy of consideration, we would certainly extend the time. We never like a litigant to suffer by the mistake of his lawyers.”
The attitude of the Full Court in Jess v Scott was that:
“… leave to appeal out of time is to be determined by the court’s view of the demands of justice in accordance with a broad judicial discretion, and not simply upon the application of any verbal formula …”
Their Honours quoted with approval the remarks of McInerney J in Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262-3:
“The object of the rule is to give the court a discretion to extend the time with the view to the avoidance of an injustice …
One object of fixing times under the rules is to achieve a timetable for the conduct of litigation in order to achieve finality of judicial determinations. A successful litigant has an interest in knowing that a claim against him has been determined and that he is no longer ‘at risk’ …
Higinbotham J, referred to the interest of litigants in achieving finality of determination when he said, in Youngman v Melbourne Storage Co Ltd (1885) 7 ALT 53 at 54: ‘When the time has been allowed to elapse that gives the defendant a vested interest in the judgment, his vested interest ought not to be disturbed unless there is some good reason for disturbing it.’ The phrase ‘good reason’ imports, I think, a consideration of whether justice as between the parties is best served by granting or refusing the extension sought …”
The Full Court also quoted with approval the advice of the Privy Council in Ratnam v Cumarasamy [1964] 3 All ER 933 at 936:
“The rules of Court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a timetable for the conduct of litigation.”
In Jess v Scott the Court was of the opinion that the expression “special reasons” is intended to distinguish the case from the usual course, according to which the time is twenty-one days. It went on to say, at 193:
“But it may be so distinguished (not necessarily will, for the rule gives a discretion) where the court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary.”
As a subsequent Full Court noted in Zocchi v The Queen [2000] 116 A Crim R 245 at 246, Jess v Scott is authority for the proposition that:
“… the Court’s power to extend time is a flexible one, designed to enable substantial justice to prevail over technical default.”
Here the delay in question is not long, and there is no prejudice suggested to the respondent on that account. However, the explanation for the delay, while understandable, is hardly adequate. The reason, however, that in my opinion an extension of time should not be granted is that Mr Kristoffersen has been unable to demonstrate any prospect of success in the appeal which he seeks to prosecute.
I have carefully considered the reasons for judgment of Kiefel J and the proposed amended grounds of appeal. The judgment of her Honour dealt in a very comprehensive way with the multifarious bases of challenge that Mr Kristoffersen raised to the determination of the Tribunal in respect of his request for documents. That examination satisfies me that Mr Kristoffersen enjoys no prospect of success in the appeal which he seeks to prosecute. In those circumstances it is a kindness that an extension of time should not be granted on a project which is futile and which would expose Mr Kristoffersen to not inconsiderable costs.
For these reasons, the application for an extension of time within which to appeal is dismissed, with costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate:
Dated: 14 June 2002
The applicant appeared on his own behalf Counsel for the Respondent: Mr M.C. Swann Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 21 May 2002 Date of Judgment: 14 June 2002
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