McMahon, J.E. v Repatriation Commission

7 7 6 9 3

JUDGMENT No. ........ ........ .,I .,......,.,

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY ) NG 659 of 1993

1

GENERAL DIVISION 1

BETWEEN: JESSIE ELIZABETH McMAHON

Applicant

AND : REPATRIATION COMMISSION

Respondent

CORAM: Burchett J.
PLACE :

Sydney 02 NOV1993 , ,

FEDERAL COURT OF

DATE : 30 September 1993 AUSTRAW
PFllNClPAL
REGISTRY

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.:

In this matter I am asked to extend the time under Order 52, rule 15, for the filing of a notice of appeal against a decision, which happens to be a decision of my own, rejecting an appeal against a decision of the Administrative Appeals Tribunal. No argument is put that the error which led to the failure to file the notice of appeal within time does not fall within the kind of thing which is referred to in Jess v. Scott (1986) 12 FCR 187; however, what is put on behalf of the respondent is that the appeal would be hopeless, and on that ground an extension of time should be refused. The terms of subrule (6) of rule 15 suggest that this is a valid ground to oppose such an application. In any case I am quite satisfied that it is a valid ground, and it has been regarded as a valid

ground in decisions of the court.

L .

However, in this particular case, although I took the view that the appeal should fail when it came before me as a judge of the court, I do not think I could hold that a further appeal is hopeless in the relevant sense. There is an argument; as I pointed out in the reasons I gave when dismissing the application that was then before me, the Tribunal does, at least on one view of its reasons, appear to have elided two questions; and it may be, while I did not think that vitiated the decision, others might see it differently. Accordingly, the case being otherwise one for the granting of an extension of time, I shall extend the time.

I extend the time until and including the date being seven

days from today's date. The applicant will pay the costs of

the present application.

I certify that this and the preceding page are a
true copy of the Reasons for Judgment herein of his
Honour Mr Justice Burchett.

Associate: N\LC&&
V

Date: 1 November 1993

Counsel for the Applicant: Mr A.L. Hill
Solicitors for the Applicant: M r Kenneth Harrison
Counsel for the Respondent: Mr D.E.J. Ryan
Solicitor for the Respondent: Australian Government
Solicitor
Date of hearing: 30 September 1993

CaseChat Overview and Summary

The case of McMahon v Repatriation Commission was heard in the Federal Court of Australia, New South Wales District Registry. The applicant, Jessie Elizabeth McMahon, sought an extension of time to file a notice of appeal against a decision of the Administrative Appeals Tribunal that was previously rejected by the court. The matter was heard by Burchett J. The primary issue before the court was whether the time for filing the notice of appeal should be extended under Order 52, rule 15 of the Federal Court Rules, despite the failure to file within the prescribed time. The respondent argued that the appeal would be hopeless and, therefore, an extension of time should be refused. The court had to determine whether the ground for refusal was valid and, if so, whether it applied in this case.

Burchett J considered the arguments and found that while the error leading to the late filing was not in dispute, the appeal would not necessarily be hopeless. The court acknowledged that there was an argument that the Tribunal may have conflated two questions in its reasons, an issue the court had previously noted. Although the court originally dismissed the appeal, it was not convinced that a further appeal would be futile. The court was satisfied that the case was suitable for an extension of time, and accordingly, granted the extension until seven days from the date of the judgment. The applicant was ordered to pay the costs of the application.

The final orders of the court included an extension of time for the applicant to file the notice of appeal, with the deadline set at seven days from the date of the judgment. The applicant was also directed to pay the costs of the application. The decision underscores the court's willingness to grant extensions of time where appropriate, while also emphasizing the importance of addressing the underlying issues in the appeal process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

DATE :	30 September 1993	AUSTRAW
PFllNClPAL
REGISTRY

Counsel for the Applicant:	Mr A.L. Hill
Solicitors for the Applicant:	M r Kenneth Harrison
Counsel for the Respondent:	Mr D.E.J. Ryan
Solicitor for the Respondent:	Australian Government Solicitor
Date of hearing:	30 September 1993