Rana v Australian Federal Police

[2007] HCATrans 192

[2007] HCATrans 192

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A29 of 2006

B e t w e e n -

RANJIT SHAMSHER JUNG BAHADUR RANA

Applicant

and

AUSTRALIAN FEDERAL POLICE

Respondent

Summons for reinstatement

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 4 MAY 2007, AT 10.52 AM

Copyright in the High Court of Australia

MR R.S.J.B. RANA appeared in person.

MS S.J. MAHARAJ, QC:   If it please the Court, I appear with MR R.J. PRINCE for the Australian Federal Police.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, thank you.  Mr Rana, you are seeking an extension of time in this matter.  How much time are you seeking?

MR RANA:   I seek about a month, your Honour.

HER HONOUR:   A month?

MR RANA:   Yes, your Honour, because my mother died and according to Hindu law that I cannot divulge time, date and all the…..what happens and the affidavit of.....suggest that there is a devious way to manipulate the situation.  I do not like that kind of value loaded on me, your Honour.  I am entitled to say what I am entitled to say in my.....privilege.  All I have to say is that I was suffering mourning and I was in depression because I lost my mother.

HER HONOUR   Yes, I see.  If an extension were granted, say, until 11 June, which is just a little bit longer than a month, would you be in a position then to file your draft notice of appeal in support of your application for special leave?

MR RANA:   Yes, your Honour.

HER HONOUR:   Yes, thank you.  Perhaps I will hear from counsel who is appearing for the Australian Federal Police.

MS MAHARAJ:   May it please your Honour.  Our instructions are that the application is opposed.  Under rule 41K(3)(c) the respondent was required by his written case in his notice of appeal within 28 days of the filing of the application for special leave, that was 26 December 2006.  The second point we make, your Honour, is that under rule 41.10.04 where a written case of the draft notice of appeal has not been filed within 28 days of the filing of the application, the application shall be deemed abandoned unless the Court or the Justice otherwise orders.

It appears, your Honour, that the applicant by summons filed on 16 January 2007 seeks an extension of time to file his documents and we assume an application also to reinstate his application for special leave which is deemed abandoned.  In short, your Honour, we respectively submit that there is no merit in the documents which have been filed by the applicant, therefore, there is no utility in this Court entertaining this matter any further.

Your Honour, there are two authorities which have fallen from this Court:  a decision of Justice Heydon in SZGGS v Minister for Immigration [2006] HCATrans 352 delivered on 26 June 2006 and also a decision of his Honour Justice McHugh in Hudson v Minister for Primary Industries Water Environment (2001) and this is a transcript delivered on 15 November 2001 and both of their Honours make a short point that the merit of the application is an important consideration in an application like this. 

In short, your Honour, we submit that the Court ought not to exercise its discretion in favour of the applicant because there is simply no merit evident in any of the arguments advanced by the applicant to date in the documents filed.  Those are our submissions.

HER HONOUR:   Thank you for that. 

There is an application for special leave to appeal from a judgment of the Full Court of the Federal Court of Australia dismissing an appeal from a single judge of that court, Justice Besanko.  Justice Besanko dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal who had affirmed a decision by a member of the Australian Federal Police in relation to a request under the Freedom of Information Act (1982) (Cth). 

The applicant has filed a summons seeking an extension of time on 16 January 2007 in circumstances where the applicant’s summary of argument and written case was filed on 5 December 2006 but the applicant did not file a draft notice of appeal within the time limits required.  It is this summons which is currently before the Court.  The applicant has advanced as his reasons for delay that his mother passed away and there were considerations relating to religion and depression which he suffered as a result of that event which impeded his ability to prepare his draft notice of appeal. 

Counsel appearing for the Australian Federal Police opposed the application and submitted that there was no real substantive merit in the application for special leave which should affect the consideration of discretion in relation to the application for an extension of time. 

Whilst there was some merit in those submissions, having regard to the reasons advanced by Mr Rana as to why he could not prepare his draft notice of appeal in time and having regard to an indication from him that he will be in a position to file that document by 11 June 2007, I now order that if on or before 4.00 pm, 11 June 2007 the applicant files his draft notice of appeal in support of his application for special leave, the application for special leave is not to be deemed abandoned. 

Nothing further?

MR RANA:   Thank you, your Honour. 

AT 10.59 AM THE MATTER WAS CONCLUDED