NAEJ v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1019

FEDERAL COURT OF AUSTRALIA

NAEJ v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1019

NAEJ & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 932 OF 2003

WHITLAM J
5 SEPTEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 932 OF 2003

BETWEEN:

NAEJ
FIRST APPLICANT

NAEK
SECOND APPLICANT

NAEL
THIRD APPLICANT

NAEM
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

WHITLAM J

DATE OF ORDER:

5 SEPTEMBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application is refused.

2.        The applicants are to pay the respondent’s costs.

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 932 OF 2003

BETWEEN:

NAEJ
FIRST APPLICANT

NAEK
SECOND APPLICANT

NAEL
THIRD APPLICANT

NAEM
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	WHITLAM J
DATE:	5 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave pursuant to O 52 r 15(2) of the Federal Court Rules to file and serve a notice of appeal out of time.  The application was filed on 6 August 2003 and the extension of time is sought with respect to orders made by the Federal Magistrates Court on 8 July 2003. 

2. There are four applicants, each of whose application for review of a decision of the Refugee Review Tribunal was dismissed by the Federal Magistrates Court.  The applicants have no legal representation.  All four applicants are present in Court today.  At the hearing, the second named applicant addressed the Court on behalf of all the applicants with their consent.  The affidavit in support of the application is also made by the second named applicant.

3. The affidavit in support of the application states that the applicants did not receive the written terms of the decision pronounced ex tempore by the magistrate on 8 July 2003 until some time after that date.  Any notice of appeal should have been filed, in accordance with O 52 r 15(1), by 29 July 2003.  The period of delay in making the present application is therefore not great and the respondent claims no prejudice based on such delay.

4. The respondent submits that the power of the Court to extend the time in which to file a notice of appeal involves the exercise of a discretion which should not be exercised unless the appeal has some prospect of success.  The reasons of the magistrate are straightforward, and they suggest no error of approach by the magistrate.  Importantly, at [12] of its decision, the court below makes it clear that there were no proper grounds of review urged in that proceeding.  The draft notice of appeal annexed to the affidavit in support of the present application includes no grounds of appeal whatsoever.

5. The nature of the discretion under O 52 r 15(2) has been considered in a number of cases, including Jess v Scott (1986) 12 FCR 187, in which a Full Court rejected a submission that r 15(2) required that the words ‘for special reasons’ be given a stringent interpretation, and held that the cases established 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. McHugh J in Gallo v Dawson (1990) 64 ALJR 458 stated that the discretion to extend time ‘is given for the sole purpose of enabling the Court or Justice to do justice between the parties’ (at 459D). That statement was applied by Mason CJ in Halliday v Sacs Group Pty Ltd (1993) ALJR 678 at 679F. More recently, the issue was considered in Jackamarra v Krakouer (1998) 195 CLR 516.

6. The overriding principle in the exercise of the discretion is whether an extension of time is necessary to do justice between the parties.  The exercise of the discretion requires the consideration of factors such as the length of the delay, the reason for delay and the prospects of success of the proposed appeal.  In Halliday, Mason CJ stated that ‘[i]f the prospects of success are so slight that the appeal would be futile, it would be wrong to extend the time and subject the respondent to further pointless litigation, delay, inconvenience and expense’ (at 679G).

7. As I have mentioned, the draft notice of appeal contains no grounds of appeal whatsoever.  Were the matters put to the court below re-agitated on appeal, it is obvious that the appeal would be bound to fail.  In those circumstances, it serves no purpose whatsoever to extend the time.  The applicants have not been able to show that an extension of time to file a notice of appeal is necessary to do justice between the parties. 

8. The application is accordingly refused with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             24 September 2003

The Applicants appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 September 2003
Date of Judgment:	5 September 2003