Nace v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 192

FEDERAL COURT OF AUSTRALIA

NACE v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 192

NACE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 179 of 2004

JACOBSON J
SYDNEY
1 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 179 of 2004

BETWEEN:	NACE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	1 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. time for the lodgement of the notice of appeal be extended to the date of the notice of motion.
2. The notice of appeal shall be the document which is annexed to the notice of motion.
3. the document annexed to the notice of motion marked “B” will be the particulars for the notice of appeal.

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 179 of 2004

BETWEEN:

NACE

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	JACOBSON J
DATE:	1 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under O52 r15(2) for an order seeking an extension of time to file a notice of appeal against a decision of a Federal Magistrate which was delivered on 23 December 2003.  It is well established that in order for an applicant to make out a case for an extension of time, it is necessary to demonstrate special reasons which distinguish the case from the usual; see Jess v Scott (1986) 12 FCR 187 at 195.

2. The judgment indicates that it was delivered on 23 December 2003 but it may in fact have been delivered on 24 December 2003.  It therefore appears that the time for lodgement of a notice of appeal was suspended from the period of 24 December to 14 January 2004, which is the Court vacation.  This is dealt with in O3 r2(4)(a).  The appeal period therefore expired on 6 February 2004. 

3. The applicant's evidence discloses that she was unaware that the judgment was handed down so close to Christmas and when she did become aware that the judgment had been delivered she was unable to contact the barrister who appeared for her and was only able to see him on 10 February 2004, after the time for lodgement of a notice of appeal had expired.

4. Mr Markus, who appeared for the Minister, very fairly conceded this morning that in a case such as this where the applicant sought a protection visa, an applicant in that position would not be expected to be familiar with the time limits and the Minister does not say that there was any prejudice arising from the short delay which has resulted in this case.  The cases have established that even where, as here, special reasons can be identified, the Court nevertheless has a discretion whether or not to grant an extension of time. 

5. One of the factors which is usually looked at is the prospects of success on the appeal.  Mr Markus made no concessions in this regard and, indeed, went so far as to say that in the Minister's submission the appeal is misconceived.  Nevertheless, the draft notice of appeal which has been put before me on the motion specifies four grounds of appeal and there are particulars supplied of the grounds which are sought to be agitated. 

6. One of the grounds of appeal puts in issue the quality of the interpretation which was provided at the hearing before the Tribunal.  As Mr Markus again very fairly conceded, the Court should have before it all of the relevant documents before being able to determine whether or not this ground of appeal can be made out.

7. In those circumstances, the Minister having conceded the appropriateness of the application for extension of time subject to me being satisfied that I should exercise my discretion, it seems to me that I should exercise my discretion, and I will therefore make an order extending time for filing the notice of appeal.

8. I am going to make an order extending the time for the lodgement of the notice of appeal.  The notice of appeal will be the document which is annexed to the notice of motion.  That document refers to a document marked “B” which contains the particulars.  So they will be the particulars of the notice of appeal, or the ground of appeal.  It is unnecessary for any further documents to be filed in the registry to institute the appeal.

9. I make a direction that the matter be sent to the Registry for the necessary administrative steps to be taken including placing the matter in the docket of a judge of the Court and appointing a directions hearing before that judge.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Date:              5 March 2004

Applicant self represented
Counsel for the Respondent:	A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 March 2004
Date of Judgment:	1 March 2004