McMahon, J.E. v Repatriation Commission

[1993] FCA 778

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