NAYO v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 483

FEDERAL COURT OF AUSTRALIA

NAYO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 483

NAYO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 397 of 2005

WHITLAM J
11 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 397 OF 2005

BETWEEN:	NAYO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	11 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave to file and serve out of time a notice of appeal from the judgment of Allsop J given on 6 September 2004 is refused 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
NEW SOUTH WALES DISTRICT REGISTRY	NSD 397 OF 2005

BETWEEN:	NAYO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	11 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to file and serve out of time a notice of appeal from a judgment of Allsop J given on 6 September 2004.  That was an ex tempore judgment.  The applicant appeared for himself.  The certified reasons for judgment were sent to him by post on 16 September 2004. 

2. The applicant has filed in support of his application an affidavit to which he annexes a copy of a letter dated 29 November 2004 from the Deputy Registrar at the Sydney office of the Registry of the High Court of Australia.  By that letter, the Deputy Registrar returned documents received from the applicant on 26 November 2004.  She also noted that the applicant had apparently not appealed to the Full Court of the Federal Court and that he could only apply to the High Court for special leave in respect of a decision of the Full Court.  In his affidavit the applicant says that the letter from the Deputy Registrar was accidentally delivered to the wrong building in his street, but he does not say when he received that letter. 

3. A draft notice of appeal is annexed to the supporting affidavit.  An extension of time to institute an appeal will only be granted for the purpose of doing justice between the parties.  That would minimally require that the grounds of appeal be arguable.  The grounds in the draft notice of appeal make no sense whatsoever.  They are in the English language.  The applicant has not conducted these proceedings in the English language and says that that document was translated to him in the Hindi language and that he understood it.  It discloses no arguable grounds of appeal.  There would be thus no useful purpose served in extending time to permit an appeal to be instituted: Halliday v SACS Group Pty Ltd (1993) 67 ALJR 678 per Mason CJ at 679. The application for leave to file and serve a notice of appeal out of time is accordingly refused with costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             11 April 2005

The applicant appeared in person.

Mr Benjamin Cramer, solicitor, from Blake Dawson Waldron appeared for the respondent.

Date of hearing:	11 April 2005
Date of judgment:	11 April 2005