Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor

[2022] HCATrans 86

[2022] HCATrans 086

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S135 of 2021

B e t w e e n -

SOSEFO KAUVAKA LELEI TU’UTA KATOA

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Defendant

JUDGE OF THE FEDERAL COURT OF AUSTRALIA

Second Defendant

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 10 MAY 2022, AT 10.00 AM

Copyright in the High Court of Australia

MR O.R. JONES:   May it please the Court, I appear with my learned friend, MR J.G. WHERRETT for the plaintiff.  (instructed by Turner Coulson Immigration Lawyers)

MR S.B. LLOYD, SC:   May it please the Court, I appear with MR B.D. KAPLAN for the first defendant.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   Yes, Mr Jones.

MR JONES:   Your Honours, this is an application for a constitutional writ in relation to a decision of Justice Nicholas on 24 August 2021.  That decision was to refuse the plaintiff’s application for an extension of time under section 477A of the Migration Act to bring a substantive application for review of a migration decision under section 476A of the Act.  As I will come to in a moment, there is no right of appeal from that decision, with the result that what must be established on the present application is that the primary judge fell into jurisdictional error in the manner in which the extension of time was dealt with.

The jurisdictional error for which we contend arises from the primary judge’s treatment of the merits of the plaintiff’s application in refusing an extension of time.  In short, we say that the treatment of the merits by the primary judge indicates that he misapprehended the scope and function of the power conferred on the court when determining whether to extend time.  That is because in a nutshell the judge went beyond an impressionistic assessment of merits and beyond an assessment of whether the claim was reasonably arguable. 

I propose to deal with three matters:  first, the statutory framework; second to show how the primary judge dealt with the merits in this case; and third, to set out why this constitutes jurisdictional error.  In relation to the statutory framework, can I ask the Court to go to the relevant provisions which begin at page 15 of the joint bundle of authorities?

KIEFEL CJ:   Mr Jones, many of us will be working from pamphlets so the section numbers are probably ‑ ‑ ‑

MR JONES:   Section 476, your Honour.

KIEFEL CJ:   Thank you.

MR JONES:   As your Honours would be aware, section 476 identifies the original jurisdiction of the Federal Circuit and Family Court of Australia and confirms the jurisdiction generally subject to the carve‑outs in subsection (2).  Section 476A then confirms, or rather limits jurisdiction of the Federal Court in relation to particular types of migration decision.  If your Honours move down to section 476A(3), despite section 24 of the Federal Court of Australia Act1976, an appeal may not be brought to the Federal Court from a judgment of the Circuit and Family Court to refuse an order under 477(2) and from a judgment of the Federal Court that makes an order, or refuse to make an order, under section 477A(2).  By that mechanism, the refusal of an extension of time, whether it be by the Federal Circuit and Family Court or the Federal Court, is not subject to any appeal. 

Section 477 then sets out the time limit for applications to the Federal Circuit and Family Court.  Subsection (1) identifies the period of 35 days within which an application must be brought and then, quickly for the present case, subsection (2) sets out the power of the court to extend the time, subject to the two matters in (a) and (b); first, that an application for an order has been made in writing and, secondly, that the court is satisfied that it is necessary, in the interests of the administration of justice to make the order.

Section 477A is then in relevantly identical terms in relation to the equivalent power of the Federal Court to extend time in cases that are validly brought before it.  The consequence of that statutory structure, as I will go on to address in a moment, is that whatever approach one takes to the jurisdiction, or the existence of jurisdictional error in relation to the determination by the Federal Court of an extension of time will also apply to the determination by the Federal Circuit and Family Court of an extension of time.

Your Honours, that is the statutory structure.  I was proposing to go now to the second topic, which is how the primary judge dealt with the merits in this case.  His Honour’s judgment begins at page 155 of the application book, and if I could just first note for your Honours on that first page of the judgment, the date of the judgment is 24 August 2021.  Dropping down to the bottom, the date of the last submission was 23 March 2021, and over the page, the date of the hearing was 8 October 2020, so a period of five months between the last submission and the date of the judgment, and a period of 10 months between the hearing and the date of the judgment.

KIEFEL CJ:   What do we draw from that, Mr Jones?

MR JONES:   Your Honour, it is one relevant factor, not a hugely significant one, that may go to the construction of the primary judge’s reasons in assessing on what basis the primary judge dealt with the merits in this case.  I will come on to that immediately, your Honour.

EDELMAN J:   How does the length of time that the primary judge took for delivery of the judgment relate to how the primary judge considered the issues?

MR JONES:   It relates, your Honour, to the construction of the reasons, and as I will come on to it in a moment, there is an ambiguity in the reasons as to how the merits are dealt with, but one matter that Justice Mortimer identified in MZABP, which I will come to in a moment, is that one does, in looking at the reasons, take into account whether the judgment has been given ex tempore or after a significant period of time, in terms of what may be expected – particularly of a judicial officer in setting out the reasons for the decision as opposed to, for example, a busy court giving ex tempore judgments or, indeed, an administrative decision‑maker.

KEIFEL CJ:   In looking at the circumstances of the hearing itself, the matter was prepared and argued fully?

MR JONES:   Yes, your Honour, it was.

KEIFEL CJ:   As by way of final hearing?

MR JONES:   It was, your Honour, because the application for an extension of time was listed concurrently with the application for the hearing on its full merits if the extension of time was granted.

KEIFEL CJ:   So, no issues of procedural fairness arise?

MR JONES:   Quite, your Honour.  No issues of procedural fairness arise.  One sees those sorts of issues referred to in this Court’s decision in Jackamarra v Krakouer in terms of how that proceeded.  One issue for your Honours’ determination will be the question of, provided procedural fairness is afforded, as it was – as your Honour rightly identifies in this case – does that mean the jurisdiction has necessarily been exercised in accordance with the limits on the function of the power or, in this case, is that even problematic to make that decision following full argument in the context of the extension of time?

STEWARD J:   Is it your case that you cannot ever list both matters at the same time?

MR JONES:   No, your Honour, definitively not.  That is a useful administrative practice.  Nevertheless, that practice which has many benefits does also have a tendency to potentially lead a court dealing with those matters together into error if it does not recognise the distinct functions which it is performing:  one, the extension of time and, one, the exercise of original jurisdiction of the court, and thereby conflates – as we say it did in this case – the consideration of the merits at both stages. 

That is why there is quite clear guidance – at least from the Federal Court, which I will come in a moment – to say that when the matters are dealt with together, the Federal Court judge should – and, indeed, the Circuit Court judge – should be cautious to ensure that there is a proper articulation of the different tests that are being applied at each stage with their different consequences.

The primary judge identified the factors to be taken into account in determining whether to grant an extension of time at paragraph 6 of the judgment.  There his Honour referred to the factors enumerated in the well‑known case of Hunter Valley Developments and at subparagraph (f) identified the merits of the substantial application as being a matter that is properly taken into account.  At paragraph 7 it is recorded that:

The Minister accepted that the applicant’s delay was not inordinate and did not contend that he would be prejudiced by the grant of an extension of time.  However, the Minister argued that the applicant’s extension of time should be dismissed because the applicant’s proposed grounds of review lack sufficient merit to warrant the grant of an extension of time.

Your Honours, interpolating here, you will have seen from the plaintiff’s submissions that we say we had a good explanation for the delay.  My learned friends rightly point out that the judge did not endorse that submission in the sense that he agreed that we had a good explanation for the delay, but nevertheless what you do not see in the judgment is a rejection of that explanation for the delay, and the result is that the determination of this particular extension of time turned on the merits of the claim and nothing other than the merits of the claim and, in those circumstances, one is able to proceed on the basis, in my submission, that all of the other potentially relevant factors that may go into the exercise of an extension of time were in the applicant’s favour.  At paragraph 8 of the judgment, which is critical, the judge identifies that:

Ground 2 of the applicant’s proposed grounds of review –

which was the only ground that was effective at this stage:

was fully argued.

For the reasons that follow, the judge was not persuaded that ground 2 has any merit and in the circumstances, proposed to dismiss the application for an extension of time.  What is obvious from that – and I think indeed this is common ground – is that this was not an impressionistic assessment of the merits of the claim but, rather, this was an assessment of the merits of the claim following full argument.  What one then sees is that the claim has been dismissed because it lacks any merit, for the reasons that follow.  Now, those reasons that follow ‑ ‑ ‑

GLEESON J:   Mr Jones, that might be common ground, but it is not clear to me that a full evaluation of this case necessarily looked any different from an impressionistic review of the case that was put.  So one thing that you might identify is where the reasons go further than an impressionistic assessment would have gone.

MR JONES:   Yes.  Well, to answer your Honour’s question directly, one of course has regard to what “impressionistic” really means and, in my submission, what it means – I will come to some authority on this in a moment – is that it can be seen on the face of the case, so without descending into detailed argument, that it is hopeless.

GLEESON J:   Would you accept that for it to be necessary in the administration of justice to have an extension of time that a primary judge ought to be satisfied that there is some merit in the case?

MR JONES:   Yes, your Honour.

GLEESON J:   This judge did not reach that state of satisfaction.

MR JONES:   Yes, your Honour, depending on what one means by “any merit”, and depending on how one gets to that conclusion, because there are two things to unpack from this part of the primary judge’s reasoning, in my submission.  The first is that it is an assessment of the merits following full argument.  Now, that is not, in my submission, an impressionistic assessment because it is not an assessment that can be seen from the face of the claim to be hopeless, and that, in my submission, is what is meant by “impressionistic”.

EDELMAN J:   It might be both.  One might have an impression right at the start, and full argument might not displace that impression.

MR JONES:   Quite, your Honour, but in terms of constructing what this judge has found, this judge has found that his Honour’s assessment is based upon full argument, so one does – so, certainly, it is a logical possibility, and, indeed it may happen in many cases to say that I have concluded that a particular view of the merits, after full argument, and it transpires that that view of the merits is identical to the one that arose when I first picked up the brief.

EDELMAN J:   That will be almost every case.  It is the very, very unusual cases where someone thinks that the first impression is that there is real merit and then the final impression is that there is no merit at all.

MR JONES:   Yes.  But your Honour does not have to grapple with that in relation to this decision, and the proper construction of this decision, but it is quite clear that his Honour has found or reached a conclusion on the merits that is based on the full argument.  Now, it would be speculation, in my submission, to ask what his Honour’s view would have been of the arguability of this case based upon looking at the claim on its face in the first instance. 

In that scenario, in my submission, there is a very real possibility, particularly in terms of the subject matter that was dealt with, that one might say this is a case that, on its face, is not hopeless, but following full argument I consider that it should not succeed.  That is precisely the sort of case that, in my submission, we say should result in the grant of an extension of time so that if the primary judge’s conclusions about the merits are wrong, the applicant can have access to an appeal right, as it would in the usual way.

EDELMAN J:   So if the primary judge had said, my impression at the start of this case was that it had no merit, and after full argument I am still of the view that it has no merit, would there still be an error?

MR JONES:   No, your Honour, because – if I could just take one aspect of that, your Honour, “at the start of the case” – I mean, yes, it would occur at the start, necessarily, and indeed, the application for an extension of time should be determined at the start.  Our complaint, and I will develop this in more detail in due course, is that when you are dealing with this threshold provision which causes a radical difference in the path in terms of the plaintiff’s rights between a complete roadblock to the claim as opposed to merits being rejected at the second stage and the right of appeal in the ordinary sense, in that scenario, it is only appropriate to the exercise of this power to assess the merits on that impressionistic basis.

STEWARD J:   Mr Jones, is the face here limited to the pleadings?

MR JONES:   No, your Honour.  I think it would be incorrect to try and put too much magic in the phrase “on the face of the claim”.  It really is a descriptive or qualitative phrase trying to identify the degree of unarguability, if I can put it in that way, that is inherent in the claim.  So, your Honour, say, for example, one may have a pleaded ground that one says I cannot tell that the ground is hopeless just by looking at the ground, but I do know that it is directly contrary to High Court authority on, for example, when one makes inquiries in a particular matter and therefore I know that it is hopeless.  It is those sorts of things that one is looking for and, in relation to this subject matter, that did not exist.

STEWARD J:   So what does the judge do when, as I assume, occurred here, there is an order for full written submissions to be filed with the Court and they address the merits as a matter of judicial review?  What do you do with those submissions?  Do you look at them glibly or what?

MR JONES:   Well, they obviously should be read, your Honour, but one of the advantages of having a judicial officer presiding over the proceedings is generally an ability to put certain things within one’s mind when looking at the matter through a particular frame of reference, and the frame of reference that the primary judge should be looking through at the extension of time stage is the impressionistic arguability stage. 

GORDON J:   Do you accept, though, in some cases that even if you are right about the impressionistic arguability stage, that sometimes you actually have to go further than the face of the record?  You actually have to look at authority, you actually have to assess the merit in order to reach that conclusion?  Where is the line drawn?  At what point, suddenly on your argument, does it become wrong to have gone past impressionistic into merits?  It seems to me to be a line that is just not capable of being drawn.

MR JONES:   Your Honour, I would accept with respect that it is a line that is not capable of being drawn in a bright line sense.  It is a question of characterisation of the activity that has been undertaken by the judge.  So, to take an example ‑ ‑ ‑

GORDON J:   But it has to be in the context of the exercise of the statutory power.  You may have to come back to this for me, Mr Jones, but the power is broad, it has no mandatory considerations.  Section 477A is the general rule – subsection (1) is the general rule; subsection (2) is the exception to the general rule.  It has identified purpose.  It just seems to me to be interrelated, I must say, to suddenly, in effect, jeopardise or criticise a judge for being overly conscious in trying to assess the merits of the matter.  I do not understand how it can give rise to jurisdictional error at the moment, but we just need to make sure that we understand what it is you are actually contending for.

MR JONES:   Well, the core of our argument, your Honour, is that there will be a jurisdictional error if the judge misapprehends the function that is being exercised.  Now, the misapprehension that occurred in this case, in my submission, is that when you are dealing with the merits, the purpose of the power to extend time is to determine whether a particular application should proceed to a full determination on the merits.  That is its purpose.  If it proceeds to the full determination on the merits, then the applicant has a right of appeal in the event that the primary judge finds against him or her. 

GORDON J:   So, to ask the specific question which I think builds on something Justice Gleeson asked you, what aspects of his Honour’s reasonings go too far here?

MR JONES:   Your Honour, we say two things go too far.  First, in paragraph 8, the fact that the judge has reached a conclusion about the merits based upon the full argument – his Honour says so expressly – rather than an impressionistic assessment.  Now, I accept your Honour’s point that it is difficult to draw the line between something that may be seen to be hopeless on its face and something that may be seen to be hopeless with a more detailed examination of the authorities.  Now that, nevertheless, is a distinction that has been regularly drawn in the authorities both in relation to this particular power and in relation to wider powers in relation to summary judgment and strike‑out.  I will come to ‑ ‑ ‑ 

EDELMAN J:   Mr Jones, is the distinction you are drawing any different from the distinction that was drawn by this Court in Citta Hobart v Cawthorn between a matter that is entirely untenable on its face and a matter where one needs to descend into the merits?

MR JONES:   Yes, your Honour, that is one way of looking at it.  I mean – I suppose it brings again in the concept of “on its face”, which ‑ ‑ ‑ 

EDELMAN J:   That then would mean that your submission really is that the extension of time question is one about whether there is even a matter before the Court.

MR JONES:   To the extent that those tests align, yes, your Honour.

EDELMAN J:   So, that one must extend time, if there is any matter before the Court, subject to the other considerations.

MR JONES:   Well, that point does feed into this point, your Honour, that the purpose of this particular provision for an extension of time is as derived from this Court’s decision in Bodruddaza to deal with a situation where, for example, a plaintiff may have been incapacitated such as to not be able to comply with the time limit.  Now, if that plaintiff has been incapacitated such as not to be able to comply with the time limit, then that plaintiff has a right, as a matter of fairness, to have his or her matter dealt with by the Court in the same way that any other applicant has such a right, who has brought their claim within time.  We say that is precisely what is being dealt with here.

So, we do not see it through the lens of whether there is a matter, or not a matter, but the same result flows, in my submission, because what is really being found when the application for an extension of time is refused in the absence of any other factor – it may be quite different if there has been an egregious delay, or no explained delay, but what is really being found is this plaintiff, despite having missed the time limit, essentially has the same right to have his or her claim considered as any other plaintiff coming before the Court, and that is the consideration that should inform the function that is being exercised.

GORDON J:   Is that right?  I just want to test that, because that really brings, I think, into sharp focus the purpose of section 477A(1) and (2).  So if you look at – and I think they may be different – 477A(1) has the limit, and 477A(2) has what we might call the exception to the general rule.  Do you accept that, and that when we are looking at the exception to the general rule, we are really looking to make sure that 477A(1) does not become an instrument of injustice?

MR JONES:   That is right, your Honour.  I would accept that it is not trying to become an instrument of injustice, and also that what 477(1) and 477A(1) do is create a prima facie bar to the applicant’s claim such that it is the applicant’s job to convince the Court that the administration of justice requires an extension of time to be granted.

GORDON J:   Well, it is not quite right, is it?  You have to make application, and then the second precondition is you have to persuade the Court that it is necessary in the interests of the administration of justice to extend time and, necessarily, there are no – as we know from the authorities, no mandatory considerations.  The courts have given some guidance about the things that might be taken into account.  It seems to me that they are all matters within jurisdiction.  They are not matters that go to jurisdictional error.

MR JONES:   With respect, we say no, your Honour.  If I can proceed directly to that.  Certainly we accept – and I say this by way of acknowledgement – that there are no mandatory relevant considerations within these powers.  So one does not derive from them an implied statutory requirement to take into account the merits and one does not derive from them an implied statutory requirement to deal with the merits at any particular level.  So we do not put our case on that basis.  We put our case on the basis that the court has misapprehended its functions and power in determining what it is doing. 

Now, when you get to that stage, your Honour, one is entitled to look at that guidance – and it is only guidance; it is not binding – and ask what that guidance tells one about the nature and limits of the functions and powers that are being exercised because true it is that non‑compliance with the guidance does not create an error of law, let alone a jurisdictional error.  But what the guidance does demonstrate, in my submission, are matters that derive from the nature of the function of the power as they have been considered by courts in determining what approach should be adopted.  Can I just show your Honour some authority in relation to that.

GORDON J:   I do not seek to take you out of your order, Mr Jones.  I just seek to raise the issue.  If you want to deal with it later, by all means do.

MR JONES:   Your Honour, I welcome the question.  Perhaps I think what I will do first is answer one of your Honour’s prior questions relating to the construction of the judgment in the sense that your Honour asked me what do we rely on in the judgment to say that the judge got it wrong.

GORDON J:   You identified paragraph 8 as the first paragraph, I think.

MR JONES:   I have identified paragraph 8, your Honour, and the second part of the judgment on which we rely in that regard begins at paragraph 14.  This is where the judge deals with the merits of the substantive application.  One can see ground 2 set out and then a summary of the applicant’s arguments at 15 and 16.  Then at paragraph 17 the decision of Justice Logan in Dalla is identified and quoted, that being, it would be fair to say, the high point of my case before his Honour.  It is then said at 18 that he notes the Minister’s argument, and there is then consideration between 19 and 27 of various matters in the case and the applicant’s submissions.

At paragraph 28, the primary judge says, having given that, in my respectful submission, detailed consideration by reference to the detailed argument in a manner that one might expect to see were one dealing with a substantive application of time, his Honour says that he does not accept the applicant’s submissions.  So that, in my submission, is properly characterised as a determination on the merits following full argument and following detailed consideration by his Honour. 

There is then further reasoning set out at paragraphs 29 to 32 of the decision.  That detailed reasoning, in my submission, again is reasoning that goes to the substantive merits and is properly characterised as his Honour looking at the detail and determining that the arguments are not made out.  That is the fair and proper characterisation of those reasons.  My learned friends light on the last sentence of paragraph 32:

The Minister’s process of reasoning was not unreasonable in the legal sense nor was it affected by any other error capable –

is the word emphasised by my learned friends:

of amounting to jurisdictional error.

What is said against the plaintiff is that that language contains within it a determination by the primary judge that this claim was hopeless or not reasonably arguable.  We say the mere articulation of that argument reveals the fact that this judgment was not one in which his Honour was concluding that this was a hopeless or a not reasonably arguable case, whether impressionistically or following full argument.  That is simply not the way his Honour expresses himself.

GLEESON J:   He does not identify any point that is reasonably arguable that he disposes of on balance.

MR JONES:   No, he does not, your Honour.  That is true.  I suppose that can be said against me.  I say what he has not done is reached a decision that it is unarguable.  It is, of course, true that he has not reached any decision that it is arguable.  My submission is that the proper characterisation of the reasons is that his Honour has simply fallen into error because, perhaps, of the listing of the applications together and thus not addressed the critical question on the merits in relation to an application and extension of time, that critical question being whether it is reasonably arguable.

That fell, in my submission and in light of the way it was put to his Honour, to his Honour to grapple with, identify, and if indeed it was the case that it was to be said that this was a hopeless claim such as to justify the refusal of the extension of time, then that should have been explained and set out expressly.  That is particularly so, in my submission, where the learned judge had ample time and following the judgment to consider that matter and set it out in detail.

KEIFEL CJ:   But if a judge finds that something has no merit, no prospects whatsoever – which is how one would read paragraph 8 – has not the judge necessarily considered that there is not anything reasonably arguable?  The two just blur.  The distinction is blurred, is it not?

MR JONES:   Your Honour, we say that is not the correct construction of paragraph 8.  The language ‑ ‑ ‑

KEIFEL CJ:   Well, how do you read “has any merit”?

MR JONES:   Well, “any merit”, in my submission, is an ambiguous phrase and could mean “has no merit at all”, i.e. is hopeless ‑ ‑ ‑

KEIFEL CJ:   Has no – it is hopeless and has no prospects.  Is not that how you read it?

MR JONES:   We say no, your Honour, because another meaning that could be put on those words is simply to say, “I reject the arguments.  I do not think they have any merit.”  Certainly, in my submission, that is a common way judicial officers express themselves when they say, “I reject this argument.  I do not think it has any merit.”  If – and that is underscored by the fact that that conclusion is reached for the reasons that follow. 

Now, if it was the case that “any merit” meant hopeless and unarguable, one would expect to find in the reasons that follow that particular phrase, particularly in circumstances where it was well known in this area – be it guidance or be it something else – that that is generally the approach to be applied in determining whether to grant an extension of time.

GLEESON J:   Is there anything in the consideration which reflects a recognition by the primary judge that your argument had any merit?

MR JONES:   No, your Honour.

EDELMAN J:   The conclusion of the primary judge was not to grant leave to appeal by dismissing the appeal, it was to refuse leave to appeal.

MR JONES:   Yes.  But if your Honour is putting to me that – well, to refuse the extension of time.

EDELMAN J:   Sorry.  Refuse the extension of time.

MR JONES:   But if your Honour is putting to me that one can infer from the fact that the judge refused an extension of time, that the judge has applied the correct test on the merits to refuse the extension of time, that, in my submission, would be circular.  The very point we are advancing is that the judge has fallen into error.

STEWARD J:   Is that quite right, because when you look at paragraph 6, the learned judge refers to Justice Wilcox’s decision in Hunter Valley, paragraph 7, the Minister makes the submission that the application be dismissed because it lacked sufficient merit to warrant the grant of an extension of time and then what follows in 8 is the learned judge’s decision that it does not have any merit and therefore there should be no extension of time.

MR JONES:   Well, your Honour, I would object, with respect, to the emphasis that one might place on the word “any”.  Certainly, that is a ‑ ‑ ‑

STEWARD J:   But he is meeting the argument that the Minister put, that there was insufficient merit in the context of an application for an extension of time.

MR JONES:   Yes, but the argument, your Honour, that is recorded in paragraph 7 is not that the claim lacks any merit or is reasonably – or is unarguable or is hopeless.  The argument that is being put is that the application lacks sufficient merit to warrant the grant of an extension of time, whatever one may think that means, and whether that gives the judge a roaming discretion, as it were, to take into account whatever particular view or threshold of the merits that might be – that he might see fit.

EDELMAN J:   But that is the test, is it not?  I mean, if the application were 10 years out of date, it might have a little bit of merit, but an extension of time would still be refused, if the merit is only trivial.

MR JONES:   Yes, and what that then requires reference to, your Honour, is the other circumstances that feed into the exercise of the discretion.  Now, your Honour would be right in circumstances where there is an egregious and unexplained delay, and it is well‑established that in those circumstances, one may need to show an exceptional case on the merits.  In relation to a case such as this one, where, in my submission, all of the factors in favour of a discretion were – all of the factors feeding into the discretion were in the favour of the grant of an application for an extension of time, the treatment of the merits should be, in accordance with the function under 477A, a rather different one.  So the phrase:

lack sufficient merit to warrant the grant of an extension of time -

wraps up different ways in which the court may deal with the merits based upon the other factors feeding into the discretion.  What it does not do is reveal that the primary judge has identified, as his Honour, with respect, should have done, that there might be other factors feeding into the discretion.  Here, the merit should only have been assessed to see whether they are reasonably arguable.  That is my submission in relation to that.

GLEESON J:   You are saying that if he had done that, he might have found some merit that he did not find on a closer examination?

MR JONES:   Well, yes, your Honour.  Your Honour says he did not find it on the closer examination.  His Honour simply did not address the question.  Now, in my submission, in circumstances where the argument is being fully set out in detail, and a conclusion is reached at the end of it, that the case is rejected, in circumstances where one is dealing with an application for an extension of time, one cannot infer from the fact that his Honour did not refer to whether it was reasonably arguable or not, the fact that he concluded, his Honour concluded that it was unarguable or hopeless ‑ ‑ ‑ 

GORDON J:   Could I just test that?  You said earlier that his Honour should have, in effect, assessed by reaching a conclusion that it was unarguable.

MR JONES:   Yes, that is right, your Honour.

GORDON J:   I must say, for my part, like the Chief Justice, I find that difficult.  Is that not what paragraph 8 says?

MR JONES:   Your Honour, in my submission, not when read in its proper context, because it is all the – firstly, it is after full argument, and our complaint would be the same even if his Honour found it was unarguable after full argument as opposed to on an impressionistic basis, as I submitted earlier.

GORDON J:   This is because, absent – if it had got through what you might describe as the lower threshold and had a substantive hearing, you would have had appeal rights.

MR JONES:   Yes, your Honour.

GORDON J:   We are really dealing with a very small category of cases but, in effect, the complaint that you have lost an appeal right, if it had been dealt with on its merits.

MR JONES:   Yes, your Honour.

GORDON J:   As I understand it, we are back to where we were before.  Can we just flip it for the moment?  You have identified where the judge has gone, as you say, too far.  What would have been the approach that should have been taken, if it was the lower threshold, on your proposal that it be some conclusion that a case is unarguable?

MR JONES:   Yes, your Honour.

GORDON J:   What would the primary judge have done differently?  I say that for this reason.  The primary judge would have had to have identified, by reference to the same materials and, if you take the paragraphs you have taken us to, the consideration paragraphs, Dalla, the material set out in paragraphs 21 through to 27, there is not what you might call the most extensive analysis.  What would the judge have done or excised out of it if they had undertaken this lower approach?

MR JONES:   Your Honour, with respect, the analysis of paragraphs 29 to 32 which in their terms summarise the different submissions of the parties that were being made by reference to 4 or 5 are quite significant authorities in this area.  Now, the very fact that the judge has seen it necessary to go to those authorities and to reach conclusions about what they mean is, in my submission, some evidence that what the judge is not doing is assessing arguability on its face.  We say there should be a structured approach to this in the context of an application for an extension of time, precisely because there is a radical difference.  Your Honour identified the appeal rights when an extension of time application is refused, as opposed to granted.

Can I just show your Honours one way in which this has been - the correct approach has been considered on the authorities.  That is in the judgement of Justice Wigney in SZTES v Minister for Immigration and Border Protection [2015] FCA 719. It begins at page 897 of the joint authorities bundle

KIEFEL CJ:   Which tab number is that, Mr Jones?

MR JONES:   Tab 33, your Honour.  If I could take your Honours to paragraph 102 at page 96 of the book, his Honour there says:

It should again be emphasised that the outcome of this application should not be taken as condoning, let alone encouraging, the Federal Circuit Court to hear and determine extension applications in the manner it did in this matter.  Where an application to extend time under s 477(2) of the Act is listed for hearing at the same time as the substantive application for review, and where full argument takes place in relation to the merits of the application, care should be taken to ensure that the issues that arise in relation to the extension application are dealt with clearly and discreetly from the issues that arise in relation to the substantive application.  That will avoid the sort of confusion that arose in this matter.  Furthermore, when the merits of the substantive application are fully argued, it will ordinarily be quite artificial to import into the consideration of the extension application an assessment of the likelihood of success of the application.  Where the only issue on the extension application is the merits of the substantive application, and where the merits are fully argued, the better course in all but clearly hopeless cases would be to extend time and deal with the merits on a final basis.  That will avoid the unfortunate perception that might otherwise arise to the effect that the extension application was refused so as to deny the applicant appeal rights in relation to the substantive application.

GLEESON J:   Mr Jones, do you accept that it is not necessary, in the interests of the administration of justice, for unmeritorious claims to have appeal rights?

MR JONES:   Yes, your Honour, unmeritorious claims in the sense of claims that are hopeless and unarguable for the same reasons that it is legitimate in those circumstances to strike out such claims and thereby deny the applicant or plaintiff their right to a full hearing which they would otherwise have.

GLEESON J:   A judge who cannot or who does not identify any merit in a case should not allow that case to proceed on the basis that would end up potentially enabling the applicant to use the extra resources of the court by exercising a hopeless right of appeal.

MR JONES:   Yes, your Honour, subject to the interpretation of the phrase “any merit”, I agree with your Honour’s observation.

KEANE J:   But determining the content of that phrase “any merit”, that is the function that the judge has to perform.  It is inevitably the function that the judge has to perform.  How can it be said that in performing that function, and you would say too carefully, the judge has exceeded the jurisdiction that is vested in him or her?  It is what the judge has to do.

MR JONES:   Your Honour, we do not complain about it being considered too carefully; we complain about the threshold that has been applied in relation to the consideration of the merit.

KEANE J:   But the judge does not know whether the threshold has been crossed, even on a test as vague as yours, until the exercise is performed.  You want to contend that in performing that exercise, the judge exceeds his or her jurisdiction.  That seems to be an extraordinary proposition.

MR JONES:   Well, your Honour, it is not, with respect, an extraordinary proposition because one has to focus upon the function that is being exercised and it is only a function to determine whether the application of a particular applicant should be allowed to proceed to a final hearing.  That is the only function that is being performed. 

Now, the final hearing is the place at which the final assessment of the merits occurs.  It would be a perversion of the statutory scheme to say that it is a legitimate exercise of the function at the threshold stage to do that which one is asking whether the plaintiff should be allowed to do at that threshold stage.  It is manifest that the application for the extension of time is not the prism through which to examine the merits on their final basis.

In terms of the guidance and building upon the decision of Justice Wigney that I just showed your Honours, can I take the Court to the decision of Justice Mortimer in MZABP.

EDELMAN J:   Mr Jones, before you do, can I just ask you, Chief Justice Barwick in General Steel Industries said that:

Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.

Is that wrong?

MR JONES:   We say it does not apply in this context, your Honour.  It does not apply in this context because there is no appeal right from the decision on the extension of time.  The absence of an appeal right is something that should inform the limits on the power to extend time.  Now, your Honours have in the bundles a number of decisions about extension of time, cases such as Jackamarra v Krakouer, Klein v Domus, Brisbane South Area Health Authority.  All of those are cases in which there is an appeal, sometimes three levels of appeal, from a decision to refuse an extension of time.  So, Klein v Domus it was considered on four separate occasions.

Now, this is, evidently, not a power of that type.  If the merits of the application are dealt with on a final basis, certainly, in that context, but we would say also, in a scenario that your Honour Justice Edelman identified in terms of it taking many days to determine whether something is unarguable, in that scenario it is not an appropriate use of this power in circumstances where that would bring to an end, once and for all, the application that the applicant had, potentially in circumstances – and this is taking an extreme example but potentially in circumstances where a plaintiff has missed the time limit because he or she was completely incapacitated in the way that the Court identified in Bodruddaza, and in those circumstances, a lower test, or a less‑requiring test for the merits is appropriate in the exercise of this particular statutory function.

EDELMAN J:   At some stage, could you identify the implication that you say must be contained in section 477(2) to give effect to that premise?  What words would 477(2) need to contain?

MR JONES:   Yes, your Honour, I will come to that in due course.  If I could show your Honours MZABP, the decision of Justice Mortimer, this begins at page 667 of the joint book of authorities, I think that is tab 25.  If I could ask your Honours to go forward to paragraph 15, your Honours will see that her Honour interprets the reasons in that case as appearing to be that:

the Court was finally determining the success or failure of those grounds.

The passages that are interpreted in that way, one can see at the bottom of paragraph 15:

The conclusion was open to the Tribunal . . . Grounds 1 to 3 have not been made out.

Then at paragraphs 16 and 17, a reference to there being:

no substance to the complaints –

Now, that underscores a point I was making earlier, that judicial officers do sometimes reject arguments that are advanced by saying that there is no substance in the complaint or that they do not have any merit.  That does not necessarily carry with it the emphasis on the word “any” that one might wish to read into the language that was used by the primary judge in this case.

If one then goes forward to paragraph 37, that identifies the complaints that were made in that case about misconstruing the power.  Paragraph 39 contains the reference that I alluded to in relation to a question from your Honour Justice Edelman about the delay in the reasons from the hearing and what one can make about the interpretation of the decision in that context.  Paragraph 41 identifies Hunter Valley Developments, analogous to this case, and then one turns to paragraph 56.  One sees there, in the fifth line:

Second, the merits of the underlying judicial review application were not necessarily explored in the kind of detail seen in decisions such as the Federal Circuit Court decision in the present case.  If anything, more emphasis was placed on the explanation for the delay.  In my opinion that is a preferable approach.

Then at paragraph 60, the last sentence:

Counsel submitted it appeared the Federal Circuit Court had decided the extension of time as if the case was fully argued, and this was an incorrect approach –

Then her Honour says that the matter cannot be raised, in a sense, because it was raised too late, but nevertheless sets out her disquiet about the way in which the Circuit Court dealt with the matter, and says at 62:

it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources –

being a point made to be by your Honour Justice Gleeson:

expended by the parties and the Court, and the inevitable impact . . . There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued.  Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face –

and that is where I derive that phrase with its ambiguities and all:

and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration . . . If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level . . . into a fuller consideration . . . then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

EDELMAN J:   Well, that is consistent with your submission, is it, because your submission earlier was that if, for example, there was a lengthy delay which was not fully explained, then one could travel beyond the immediate consideration of whether or not the claim was on its face plainly hopeless.

MR JONES:   Certainly, your Honour.  I certainly accept that proposition.  I would not accept that her Honour’s reasoning here is inconsistent with it because it is just not something that is being considered.  It is merely stating the proposition that generally this is the case.  Of course, there will be those exceptional circumstances where the merits are dealt with in a different way, and that is a function of the fact that merits are not a mandatory relevant consideration. 

The way in which they are dealt with may vary by case to case, but the way in which they are dealt with may indicate that the court has gone beyond the nature of the function that it is performing in a circumstance where, as in our case, we say all of the factors relevant to the discretion speak in favour of the grant of the extension of time.

EDELMAN J:   Why do you say that would generally be the case?  I mean, certainly in my experience on this Court, the general case is that there is an explanation for delay.  That explanation is never entirely complete.

MR JONES:   Yes, your Honour, but is the point your Honour is putting to me that in a circumstance where there is a delay, where the explanation is not entirely complete, then in that situation the application may still be refused even if it has – it is arguable on its merits?

EDELMAN J:   Well, as I understood your submission, it is inappropriate to descend into any consideration of merit even for the purposes of determining the claim ultimately is hopeless, unless one has other factors that are going to be weighed on the balance.

MR JONES:   I am sorry, your Honour, I am obviously putting my submission unclearly.  The point that – the submission that I am making is that when one is dealing with a situation such as this where there are no factors against the granting of extension of time except for merit – put another way, where all of the other factors relevant to the extension of time favour the grant of an extension except for potentially merit – in that scenario, when the judge travels beyond this threshold assessment of the merits, that would bespeak the judge go beyond the nature of the function or power.  Now, your Honour, if there is an explanation that is being advanced that is not adequate, that may change the position and indicate, depending on how defective that explanation is, that a different assessment of the merits is appropriate.

STEWARD J:   Mr Jones, just before you go on, the reference to Jackamarra in that passage at paragraph 62, is that really apt in this case, given that Jackamarra was a case where there was very limited material and argument before the Court and it was in those circumstances that this Court said that one would not go into the merits because one could not go into the merits?  Here, of course, we have a full day’s hearing, I think from memory.

MR JONES:   Yes, it felt like that, your Honour.  Your Honour is right ‑ ‑ ‑

STEWARD J:   I suppose the question really is then – I am so sorry – is, if having looked at the merits, the judge decided that the case was hopeless, and if having looked at it impressionistically, he would have reached the same conclusion, what was the error here in looking at a thing on its full merits, given that the Court was able to do so?

MR JONES:   If the judge considers that the claim is unarguable on an impressionistic basis, the judge should refuse an extension of time.  Now, your Honour is right to say that in Jackamarra the complaint that the Court had was essentially one about procedural fairness, and that was the point that your Honour the Chief Justice identified to me at the start, which is, do we make a procedural fairness complaint?  No, we do not, because we were on full notice that full argument would take place. 

The point we make here is a different one, which is whether when one travelled beyond that assessment of the merits, whether we had notice of it or not, the Court is not doing, not complying, with the limits on the function that has been conferred on it by section 477A.  If I could just pick up the paragraph 63 of her Honour’s decision:

The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” . . . Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right.

That is, in answer to your Honour Justice Steward’s question, that is dealing with a situation where they are heard together.  All of these are situations where they are heard together.  Then at paragraph 66, this is six lines down:

I agree with those observations.  In my opinion, unless the grounds are hopeless in the sense I have discussed above so that simply on an impressionistic reading and consideration without full argument a judge can be confident they must fail, the better approach if the Court is otherwise satisfied it is in the interests of the administration of justice to grant an extension of time –

and then consider the grounds of review on their full basis.

There is no reason why that cannot still be done in one hearing and in my opinion it reflects a more appropriate exercise of the supervisory jurisdiction –

Then at 68, and of course, this is where it comes to the crunch, what the court has done must be sufficiently egregious that the court can determine that there has been:

a fundamental misunderstanding of the discretion in s 477(2) as to represent a misapprehension of the nature of the power –

Now, whenever one is dealing with a claim for jurisdictional error in terms of a misapprehension of the nature of the power, it will be necessary for the court to engage in some process of characterisation and classification as to what the nature of the power is.  That is something that is not necessarily capable of exact delineation in relation to a power such as this, and your Honour Justice Edelman asked earlier, what implication do you wish to make into this section? 

In my submission, it is not a question of implication, it is assessing the nature and function of the power that is being conferred using the indicators in the statutory context, and in particular the absence of a right of appeal, to assess what treatment of the merits is appropriate in that context, and that is the treatment of the merit ‑ ‑ ‑ 

EDELMAN J:   The nature and the function of the power is one, if satisfied that it is necessary in the interests of the administration of justice to make the order.  One has to confine that power in some way, by reference to the interests of the administration of justice, to reach your premise, does one not?

MR JONES:   Not confine, your Honour, with respect.  Certainly interpret what that means in this context.  Now, if by what your Honour means by “confine” is one has to reach a conclusion that the court could not perform a substantive assessment of the merits on a full basis then, yes, it is confined in that way, but only because properly interpreted the nature of this power is a threshold, is a gateway. 

As your Honours Justices Gageler and Keane said in Wei, this is a condition on the grant of substantive relief, and it therefore makes little sense, in my submission, to say that whether or not someone is entitled to substantive relief should be assessed and determined when asking whether the condition has been satisfied to get to the later stage.

KIEFEL CJ:   How does the judge approach this question on an impressionistic basis and the question whether or not something is arguable?  Does the judge skim read the material or not read all of the application, or does the judge read all of the material that is put forward before the parties, but ask a different question?  Is that what you are really saying?

MR JONES:   Yes, your Honour, it is the latter, and that is how ‑ ‑ ‑

KIEFEL CJ:   But the judge is reading all of the material, all the affidavit material, the decision appealed from, considering all of the authorities, but this constraint that you are speaking about is a constraint on the question that the judge poses for himself or herself?

MR JONES:   Yes, your Honour.

KIEFEL CJ:   But the only question that the statute poses is one which is necessary in the interests of justice, so there is a limitation being built in here and Justice Edelman has asked you about an implication.  The approach that you are contending for necessarily builds in a limitation in the way in which the judge is to exercise the discretion.

MR JONES:   Yes, your Honour, in the sense that this particular power occupies a particular place in the statutory scheme.  So, in my submission, it is correct that it can never be in the interests of the administration of justice to refuse an extension of time by determining the substantive merits if the other factors favour the grant of an extension of time.

KIEFEL CJ:   That is to give the section two subjects rather than one to deal with.

MR JONES:   Well, in my submission, it is something that flows from where this power sits in the statutory scheme in that it is not a power for the determination of the substantive merits of the case.  It is a power to determine whether the matter should proceed to that stage, to proceed to whether there should be a substantive determination on the merits and to proceed to a stage where that applicant will be treated in the same way as all other applicants before the court, including in relation to their appeal rights.

GLEESON J:   But the judge needs to work out whether there is a point that could go either way, for the applicant or the respondent.  That is right, is it not?

MR JONES:   Yes, your Honour, with respect, if that means it is something that is arguable, yes.

GLEESON J:   Yes.  So what you are saying is they need to do that, but you are also saying they need to do it in a particular fashion?

MR JONES:   Yes, your Honour, although, as one can from her Honour Justice Mortimer’s analysis in MZABP, when one is talking about “impressionistic basis”, as I have said, it is not a matter of only looking at some of the material, it is the nature of the test that is being applied, and trying to identify whether, on this particular application, one can see, on its face, that it is hopeless.  That is something that the judge should do at the beginning of his or her analysis in determining whether to grant an extension of time.

GORDON J:   So that directs to two questions, does it not?  The first question is what is the test, on your case, that has to be applied for the purposes of 477A(2), and your contention is that the bar is low and that the preferred course is that the leave is granted and then the matter is assessed on the merits and then refused.

MR JONES:   Yes, your Honour.

GORDON J:   That is, in a sense, your complaint, as I understand it.

MR JONES:   Yes, your Honour.

GORDON J:   The second question which arises, which is related to it, is whether, even if that is not done, it amounts to jurisdictional error in the context where you have a matter within jurisdiction driven back to what 477A(2) is doing, and in a sense, they go together, because where you have a section which has a broad discretion with no mandatory considerations, which you accept there is no hard and fast lines to where and what is necessary for impressionistic, as the Chief Justice said to you, you are sitting there as a trial judge faced with all these papers, you have to look at it.  It is not a jurisdictional error, it is an error within jurisdiction.  One is looking at the section and the way it operates, is it not - the point made by Justice Wigney in the case you took us to first.

MR JONES:   Yes.  On the facts of that particular case, your Honour ‑ ‑ ‑ 

GORDON J:   But generally he was explaining, consistent with Craig and Kirk that there is a distinction drawn in the exercise of review of a judicial function, as distinct from an executive function, as to whether or not this error is an error which is jurisdictional.

MR JONES:   Yes, your Honour.  We, with respect, disagree that it is not jurisdictional, but the particular type of jurisdictional error involved, in my submission, is not a statutory precondition that has not been satisfied, it is that one can see from the particular exercise of the power that the court and the judge has misapprehended the limits of that power. 

In that regard, can I just show your Honour how the Full Court dealt with it in DHX17, which begins at page 602 of the joint bundle of authorities, which is tab 20, and the full citation is (2020) 278 FCR 475. If I could pick it up at paragraph 40, there the court rejects the argument that some form of assessment of the merits was a mandatory relevant consideration, but then at 44, goes on to ‑ ‑ ‑

GORDON J:   You accept – you do not challenge that, do you?

MR JONES:   No, we do not, your Honour.

GORDON J:   Thank you.

MR JONES:   That is correct, in my submission.  Then at 44, the court moves on to the alternative way in which the argument was put:

However, it does not follow from the foregoing that the failure by the FCC judge to correctly exercise his discretion under s 477(2) will not result in jurisdictional error . . . it is possible that the magnitude of an erroneous approach to the exercise of the power indicates that the FCC judge misapprehended or disregarded the nature or limits of his functions or powers.

Now, your Honour, I do not propose to go back to Craig v South Australia, or Kirk, but those decisions obviously establish in this particular category, thinking Kirk is referred to as the third example from Craig as one that will give rise to jurisdictional error, and of course the Court in Kirk emphasises that the verbal exactitude in this area is not possible, and the rigid taxonomy of these characters of jurisdictional error is not possible.  That is why we say that one has to look at the facts of this case to see whether the judge has gone beyond the exercise of the power.  At the bottom of this page:

It was submitted that whilst an impressionistic consideration of the grounds was appropriate, the extensive analysis of their veracity as if they were being determined at a hearing of an application for review, indicated that the Court had misunderstood its function.

The court then deals with the relevant authorities, and at 46 it picks up the point that I made earlier, that a particular error in approach to the merits may result from the applicant’s applications being listed together.  If one then turns over to the conclusions that the court draws at paragraph 64, it identifies a series of basic propositions that we endorse:

First . . . the discretion is not confined by any obligation . . . to take into account or to ignore any particular matter.

Turning the page, at 66:

Second, it follows that a failure to take into account certain factors . . . will not, per se, result in a jurisdictional error . . . 

Third, however, depending upon the circumstances, evidence that the FCC omitted to take into account the merits of the appellants’ proposed grounds of review could evidence that it has acted upon a misconception of its function or a misunderstanding . . . Whilst there may be cases where any relevant delay has been contumelious or contumacious and the prejudice to the Minister so great that an omission to consider the merits of the proposed grounds of review may not suggest a misunderstanding of function or power such cases would necessarily be rare.

That picks up the idea of the exceptional case.

Fourth, the fact that, on an application under s 477(2), the FCC has engaged in more than an impressionistic evaluation of the appellant’s proposed ground of review, strongly suggests that it misconceived its function or power and acted in excess of its jurisdiction . . . As the discussion in the authorities reveals, the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review.

Now, the Court then picks up at paragraph 69 and following a point that we also endorse in relation to the approach of the common law in denying access to the courts to litigants who have some arguable claim.  Then, at paragraph 76, the last few lines:

If, then, a court seeks to assess the merits of the proposed grounds of review against a standard of whether they would ultimately succeed on the hearing of the application, the conclusion will usually be drawn that it has misconceived its function and or power.

That is because the extension of time sits in the statutory scheme as a condition of the grant of substantive relief and, therefore, it does not make sense to determine whether substantive relief should be granted in analysing the condition.

GAGELER J:   Mr Jones, could I ask you a question that perhaps relates to the overall point that was being made in paragraph 69?  The question is a very technical question.  Does a judgment refusing to make an order under section 477(2) or 477A(2) preclude the making of a further application by the same applicant for an extension of time under one of those provisions?

MR JONES:   Your Honour, there is nothing in the statutes to say it is precluded, but I suppose it could be precluded by an issue estoppel or abuse of process argument, say.  If it was simply the case that the court had found that the time should be refused because the claim is hopeless, it would not be open to an applicant to simply relitigate that point in order to seek an extension of time again. 

One could imagine a situation in which an applicant’s case is presented so atrociously by a migration agent that, for example, a full explanation for the delay was not put forward, and then that would provide exceptional circumstances or a reasonable ground to escape an Anshun estoppel or something of that nature.

GAGELER J:   Have you come across any cases where the issue has been considered?

MR JONES:No, your Honour.

GAGELER J:   Thank you.

GORDON J:   Can I ask you, in a different context, about DHX17?  It is a bit different in that case, is it not, because there was a clear finding by the primary judge that the wrong test had been applied at that stage, and that was not even contested by the Minister - so do we not read those considerations raised by their Honours, at least in the context of the facts of that case?

MR JONES:   No, your Honour, we do not, with respect.  Your Honour is quite right to identify that the primary judge in that case had concluded that the Circuit Court had misapprehended the limits of its power but had then concluded that that did constitute jurisdictional error, even though those are the purple prose in relation to jurisdictional error and there was no notice of contention by the Minister challenging that finding, therefore it might be said to follow from that that the court did not need to deal with the matter itself.

What is quite clear from this decision is that the Full Court went into an exhaustive examination of the authorities on this issue and it ultimately agreed with the position that had been put by the primary judge in terms of how jurisdictional error arises.

Now, contained within your Honour’s question may be the fact that on this particular case I do not think there was any argument that the original decision‑maker had assessed the substantive merits of the case, or had gone beyond an impressionistic ‑ ‑ ‑

GORDON J:   No, they just applied the wrong test.

MR JONES:   Quite, your Honour.  Obviously, that is a hurdle that my case needs to get over if your Honours are to conclude that their claim to dismiss is hopeless, and that there is no difficulty in assessing something on something other than an impressionistic basis, then the application must fail.  To succeed, I must show your Honours either that this was dealt with beyond something that is merely arguable and that constitutes jurisdictional error, or that dealing with something in a non‑impressionistic way constitutes jurisdictional error on the basis that the judgment is so construed.

GLEESON J:   Mr Jones, just coming back to your answer to Justice Gageler, it could not be the case that a refusal of an application to extend time could amount to an issue estoppel or an Anshun estoppel, could it?  I can see why there might be an abuse of process if precisely the same application was made, but it could not be a case of issue estoppel or Anshun estoppel.

MR JONES:   Because it has not been determined on the merits, your Honour?

GLEESON J:   Correct.

MR JONES:   Certainly, that would preclude issue estoppel.  There is clear Federal Court authority to the effect that issue estoppel cannot arise without a determination on the merits.  I confess that I do not know the position…..an Anshun estoppel, your Honour, where I would think it is more general equitable jurisdiction about what is reasonable and unreasonable.

Returning to this decision briefly, what the Court then does at paragraphs 80 and following is to deal with the question I just addressed on in relation to the primary judge’s reasoning and lack of a notice of contention, but at paragraph 83 one sees that the primary judge’s conclusion:

in the circumstances of this case, the error by the FCC judge fell within that class of jurisdictional error demonstrated by the third exemplar in Kirk is supported by many of the authorities referred to previously.  That was entirely consistent with the conclusion drawn above that it is not appropriate on an application under s 477(2) to ascertain whether the proposed grounds of review will ultimately succeed and that such an approach is indicative of an excess of jurisdiction.

Then at 84, halfway down:

Whilst it might be the case that the particular procedural circumstances of the case impelled the FCC judge to combine the application for an extension of time with a hearing of the merits as if the application were on foot, that ultimately had the consequence that the FCC judge’s conclusion under s 477(2) was reached upon a misconception of his function and power.

So that comes back to the point made by Justice Wigney, that the judge considering the matter on a concurrent basis must be cautious to ensure that it is dealt with sequentially, and it is dealt with in a way that demonstrates that the particular function under the power to extend time has been properly dealt with. 

Your Honour will have seen from our submissions that we also say this question of the merits and how one deals with the merits is entirely consistent with how merits are usually dealt with on applications for an extension of time in other contexts.

This brings me back to one point arising from the question of guidance, and if I could just show your Honours the decision in Norbis about the role of the judicial guidance that I have shown to your Honours previously.  We have accepted, as I have mentioned, that this guidance is not binding in the sense that a mere failure to comply with it does not lead to an error of law, of jurisdictional error.  If I could ask your Honours to turn to page 329 of the joint book of authorities, which is tab 12, and then if I could ask your Honours to go forward to the judgment of Justices Mason and Deane at page 335 ‑ ‑ ‑ 

STEWARD J:   Mr Jones, could you give a Commonwealth Law Report page number?

MR JONES: I am sorry, your Honour. Yes, it is (1986) 161 CLR 513 at 519.

STEWARD J:   Thank you so much.

MR JONES:   Your Honours will see at the top of the page:

It has sometimes been said by judges of high authority that a broad discretion left largely unfettered by Parliament cannot be fettered by the judicial enunciation of guidance . . . However, it does not follow that, because a discretion is expressed in general terms, Parliament intended that the courts should refrain from developing rules or guidelines affecting its exercise . . . It has been a development which has promoted consistency in decision‑making and diminished the risks of arbitrary and capricious adjudication.

Then in the last paragraph:

the need for consistency . . . provides an important countervailing consideration supporting the giving of guidance –

Then over the page at 520 of the report, 336 of the bundle of authorities, in the paragraph next to the first hole punch:

The reference to “wrong principle” in the passage quoted from House v. The King no doubt refers to a binding rule . . . A failure to apply a guideline does not of itself amount to error, for it may appear that the case is one in which it is inappropriate to invoke the guideline or that, notwithstanding the failure to apply it, the decision is the product of a sound discretionary judgment.  The failure to apply a legitimate guideline to a situation to which it is applicable may, however, throw a question mark over the trial judge’s decision and ease the appellant’s burden of showing that it is wrong.  However, in the ultimate analysis and in the absence of any identifiable error of fact or positive law, the appellate court must be persuaded that the order stands outside the limits of a sound discretionary judgment before it intervenes.

Now, your Honours, the way in which the plaintiff deploys the guidance – and it is guidance issued by the Federal Court – is that the guidance obviously derives from the appellate court’s assessment of the nature and limits of the power, and what the courts have done, for example, in Justice Mortimer’s decision, is to say that the nature and limits of this power bespeak an assessment of the merits that is an impressionistic one at a threshold level before one can - to determine whether one should proceed to consider the substantive merits. 

EDELMAN J:   Mr Jones, can I just give you an example which might test that.  A judge is confronted with an application for extension of time for judicial review.  Substantial papers.  Initial impression is that there might be some merits to the application.  The judge reflects on it for a couple of days, reads the papers more carefully, thinks about it and realises that the initial impression was wrong and forms the view that the case is manifestly hopeless.  Do you say that it is beyond the limits of the judge’s power to refuse an order for extension of time in those circumstances?

MR JONES:   No, the point I would quibble with in relation to your Honour’s example – and this arose from a number of the other questions – is it is not a question of, in my submission, the time at which something is assessed or the degree of reading that the judge has done.  The question is by reference to the nature of the test in assessing arguability.  So, if the judge’s initial impression is that something is arguable, then goes away and reads a bit more and decides that it is unarguable ‑ ‑ ‑

EDELMAN J:   And thinks about it and reflects upon it and considers it.

MR JONES:   And thinks about it and reflects upon it, quite, your Honour, as one would hope would be done, the question remains is it arguable or unarguable in the sense that Justice Mortimer identified in MZABP, that is, can one say on its face that it is unarguable?  Now, if the further reflection over the weekend involved reading all the cases and considering the different matters that they raised and figuring out how they fit together, then that would be something that, in my submission, would indicate that one has gone beyond an assessment of arguability on the face of the matter.

EDELMAN J:   What if the judge knows all the cases?  Are they required to put them to one side and put all the legal principles that they are aware of to one side when they consider the application?

MR JONES:   A judge who knows the cases, your Honour, will know the complexities that the cases entail.  So a judge in that position is able to make an assessment of whether those authorities are something that clearly show a case is arguable or not arguable, as the case may be.  So again, it is not about when the judge reads the cases or how much the judge knows about the cases.  One can take the situation where a judge knows all the cases or a situation where the judge has gone and read them.  The test is the same, and that is whether one can see on the face of the application that it is doomed to fail. 

Now, I accept that the question of whether something is doomed to fail on the face of the application is a qualitative assessment that does not bespeak of a bright line showing when something is unarguable on its face and when it is not, but that nevertheless is the test to be applied in exercising the discretion.

KIEFEL CJ:   Mr Jones, that might be a convenient time for the Court to take its adjournment.  The Court will adjourn for 15 minutes.

AT 11.18 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

KIEFEL CJ:   Yes, Mr Jones.

MR JONES:   Your Honour, I am grateful.  There are just two short matters I will address, and I apologise for going over my estimate.  The first is a reference in relation to your Honour Justice Gageler’s question about bringing further applications for an extension of time.  We do not know any case in which that has been determined, but it was at least raised as an issue by Justice Nettle in Re Golding - (2020) 94 ALJR 1014 at paragraph 6 where his Honour noted that an application for an extension of time before this Court and an application for special leave were interlocutory, which in theory meant that once rejected they could be brought again.

GAGELER J:   But is there not a difference between the provision of governance and an extension of time in this Court – 486A – and the two provisions that you have taken us to – 477 and 477A – in the sense that there is a proceeding which is commenced by application in the court and in that proceeding the application under 486A is made, whereas with these other provisions as they have been interpreted there is no proceeding until the application is made.

MR JONES:   Yes, your Honour, that is the position.  Your Honours, the final authority that I just wanted to alert your Honours to is the decision of Justice French, as his Honour then was, in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83. That is tab 30 of the authorities bundle beginning at page 786. This was an application for an extension of time to bring judicial review proceedings under the AD(JR) Act. Could I ask your Honours to go forward to page 92 of the Federal Court Report and page 795 of the authorities bundle. Your Honours will see in the first substantive paragraph on the page after the numbers and a few lines up from the bottom:

The argument in relation to the motion for extension of time was heard in conjunction with the argument on the substantive application.

Then turning forward to 799 of the authorities bundle and page 96 of the report, his Honour there identifies the relevant factors going to whether an extension should be granted.  Then turning the page to the bottom of 97 of the report and 800 of the bundle, his Honour notes that:

There is no real explanation of the delay . . . The evidence did not establish the existence of the informal arrangement alleged.  There is some basis for characterising these proceedings as a last throw of the dice . . . However, having regard to the importance of the issues to him . . . lack of any obvious prejudice . . .  the fact that he has not slept on his rights . . . I consider that I should entertain the application –

Then relevantly the following paragraph:

In deciding to allow time to be extended, I have not taken into account the merits of the application.  It was fully argued on the merits in any event.  In the circumstances, it would be artificial to import into the consideration . . . some assessment of the likelihood

of the success . . . The question of the merits of a substantive application has to be approached with some caution in any consideration of a claimed extension of time.  If an application has no reasonable prospect of success, then the decision to refuse an extension on that basis reduces to a decision to strike it out.  To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-‑trivial probability that it will succeed.  The statement of its merits is then stochastic.

So, your Honour, we would say that is consistent with the approach that we say should be adopted in relation to section 477A, and the failure to follow a process of that nature in relation to merits is something that bespeaks of a misapprehension of the function or powers that the Federal Court was exercising.  Your Honours, unless there are any further questions, those are my submissions.

KIEFEL CJ:   Yes, thank you, Mr Jones.  Yes, Mr Lloyd.

MR LLOYD:   I would like to start by making some general observations about the plaintiff’s argument, as we apprehend it.  The key elements that first, the court, in deciding not to grant an extension of time under section 477A(2) did not consider whether or not the plaintiff’s case was reasonably arguable, I will just use that, as sort of a jargon, to be the reasonably arguable test, which is, I think, how we ultimately put it, as being a standard that has to be met, which of course is the standard that every case has to meet, whether that is within time or not.  I mean, if it is not reasonably arguable, it can be struck out, so it is not a very high standard, as I think my friend embraces.

Secondly, the court below was, in the particular circumstances of this case – I emphasise that – bound by section 477A(2)(b) to consider the merits of the proposed judicial review application only against that reasonably arguable standard; and, thirdly, that the failure to assess the merits according to that standard constituted not just an error of law, but a jurisdictional error for the Court. 

I emphasise the “in the circumstances of this case” because I want to identify what the plaintiff does not contend.  They do not contend that the Migration Act imposes a general statement or a general constraint on the court requiring it to consider the merits of an application only by reference to that standard in all applications for extensions of time under 477A.  The plaintiff has readily acknowledged to the Court, in their submissions, in paragraph 58, that there is no general duty of that kind that goes to jurisdiction, or at all, so in what circumstances is this duty or constraint said to be imposed?

The plaintiff…..offers no clear guidance as to when it is a constraint and when it is not.  In paragraph 58 they say that whether or not it is a constraint depends upon other factors informing the interests of the administration of justice, and they give a couple of examples.  One is if there is a long delay in bringing an application, or if there is no proper explanation for a delay.  That constraint, relied upon in this case, does not arise, or may not arise, that is what they say.  They say that in their reply at paragraph 3, and in their submissions at 58. 

Now, before moving on, one thing my friend said - and I do not want the Court to have the wrong impression about how the matter was before the court below.  My client did not accept or say that the court should accept the explanation that was provided.  That explanation is succinct and can be found in the appeal book at 141 to 142.  In essence, the reason for the delay is because the first lawyers he went to said he did not have a good case and it took him eight weeks to find a lawyer who thought he had a good case. 

Some people might say that is a good enough explanation or say it is not a good enough explanation.  But we say what Justice Nicholas was dealing with in paragraphs 7 and 8 was my client’s submission that having regard to that explanation, there was not sufficient merit to justify a grant of an extension of time.  It was in response to that submission that his Honour said that there was not any merit. 

We embrace that, and looked at at that level, even if everything my friend has submitted as to the law is correct, he should still lose this case, because he just does not get there on the facts.  Nonetheless, I will now go and address all those legal propositions.

EDELMAN J:   Mr Lloyd, is that right?  One way of characterising the plaintiff’s case is to say that really the exercise that was performed was an exercise of considering the wrong test – considering an application rather than considering an application for leave.  If that is so, and if the entirely wrong approach was taken to the case, why would it necessarily have failed?

MR LLOYD:   Sorry, the submission I was just making was your Honour should not be satisfied on the facts, that even what they say is the right test was not taken.  My simple proposition, I think my friend said it was common ground at one point that an impressionistic approach was not taken.  We addressed that in our written submissions in paragraphs 52 and 53.  There is something of a blur in the concept of what is an impressionistic approach and what that even means.

What we say in 52 and 53 is - we do not say that his Honour took an impressionistic approach in the sense of just vaguely looked at it or glanced sideways at the arguments and thought it was not good enough.  We accept that he looked at the substance of the argument in 52 and 53.  We do not say that it is clear that his Honour did not just conclude that the matter was not sufficiently arguable in the circumstances of the case.  That is what we submitted.

GORDON J:   Is that any more than to say that he could have looked at the merits, but he still applied the right test?

MR LLOYD:   Exactly. You cannot say, on the basis on what is in the court, that he did not apply the right test.  When I say the right test, we do not accept it is the right test.  But, if the plaintiff is right about what the test is, he cannot even say that he did not apply that test, that is all I meant in that regard.  I will come back to what we say - that there is no such test.

The plaintiff does not say…..examples about a lengthy delay and proper explanations are exhausted.  The plaintiff’s premise, we say, might be better understood that the reasonably arguable test is a constraint on the court’s jurisdiction unless there were sufficient other interests of the administration of justice that make it not a constraint.

But we say that if it is understood in that way, there is no textual support for such an approach, there is nothing in section 477A(2) that says how the merits of an application for judicial review must be assessed.  Indeed, there is nothing in section 477A(2) that makes a consideration of the merits necessarily mandatory – and my friend accepts that it is not mandatory.

It is plain – and we will develop this – that not every error of law by a court results in invalidity of the court’s decision.  It may be accepted that some constraints may go to the court’s jurisdiction.  Why does the plaintiff say that this alleged error goes to the jurisdiction?  His answer is because Justice Nicholas misconceived the nature and purpose of the statutory power in 477A, which begs the question what is the nature of that misconception?

It is not that Justice Nicholas failed to have regard to something he had to have regard to.  It is not that he had regard to something he could not have regard to.  Rather, it is that, in considering something that was permissible – the merits – his Honour considered it in a manner that was not permissible and more particularly on the facts of this case – something about the facts of this case made that manner of doing it not permissible.  It is said in their submissions at paragraph 26 that it is obvious – and I quote:

the scope and purpose of the power to extend time is not to determine the substantive merits of the application.

Today my friend has said that in a different way – but I think meaning the same thing –which is that the purpose of the leave process is to see if you are in effect worthy of a full consideration.  Now, there is something ironic about that because, of course, in this case he had a full consideration.  When the leave stage and the substantive stage are heard together, he has already got what was the purpose of the leave stage in substance.

GAGELER J:   To be fair to him, he says he has not, because what he was entitled to – in the interests of justice, he says, if he had an arguable case – was an appealable decision – an appealable final decision.

MR LLOYD:   I will come back to that.  He has put it two ways.  When he first started putting it, he says the purpose of the leave stage is to see if you are worthy of getting to a substantive hearing.  Then he says, and if you were worthy of that, then you would get a right to appeal.  Our short answer to that – and I will come back to this – is that his client did not have a right of appeal, because he did not apply within time – he did not have a right of appeal. 

He puts it in his submissions in reply at paragraph 17 that the court extinguished his right of appeal, he did not have a right of appeal, and he did not get a right of appeal because there was not extension of time, because he did not apply within time.  So, we do not accept that analysis either.

GORDON J:   Can I just test that?  I have put this to Mr Jones.  Is it not that you have a statutory purpose clearly identified by 447(1) or 447A(1), that is that the Parliament sought to restrict the exercise of the original jurisdiction of the courts by imposing a time limit.  Then, you have the exception to that general premise set out in subsection (2).

MR LLOYD:   Absolutely, that is so.  I will come to that later.  There is some extrinsic material, but the history of the matter was they had what has been very firm time limits.  Those time limits had been dealt something a blow in this Court in Bodruddaza and then there was another blow to the time limits in the other courts by reason of another case which made it very expensive for the Tribunals or the Minister to actually get the time limit to start running.  So, in light of that, they did away with the old time limits and brought in these new time limits, and that was with a view to having, once again, effective time limits but subject to the possibility of an extension of time.

GORDON J:   The exception itself has those two preconditions.  You must make application, and then the second one is directed at making sure that, in effect, the time limit does not work an injustice; because one says you have to establish…..applicant that it is, whatever the language is, it is in the interests of justice that the leave be granted.

MR LLOYD:   Yes, necessary in the interests of justice.  Yes.  I embrace that.  The court is given – this, again, another point I will come to, but a subjective – it is unusual that it does not say that it is necessary in the interests of justice, it is the court is satisfied that it is necessary in the interest of justice.  So it is not an objective test as, I think, this Court’s – section 35A of the Judiciary Act, it is posited as an objective test.  This is the Parliament identifying the court as subjectively deciding whether it is necessary in the interests of justice, which we would say shows that there is an intention of Parliament that the court be the one to make that assessment. 

So, it reinforces the notion that it is within the jurisdiction of the court.  It is meant to be an assessment of a number of balancing or potentially balancing factors broadly within the concepts of the administration of justice, how much court resources will be spent on the matter, how many times have gone, how long the delay is, how much prejudice is done to the respondent, how much prejudice is done to third parties.  All of that can be brought into the balance.

GORDON J:   Well, there are broad – I think Mr Jones accepts there are no mandatory considerations, broad discretion.  It is a question for the judge faced with the facts and circumstances of the case to identify what they might be.

MR LLOYD:   Exactly.  We are ad idem on that.  What we say is that that is classically something when you have an evaluative judgment vested in a decision‑maker, it is classically something where identifying the weight or the significance to be attached to things is a matter for that person within their jurisdiction.

I will say, in relation to the way my friend puts his argument as to the scope and purpose of the provision, we accept that a power to extend time may be exercised in circumstances where not all the material is available.  Thus, in such cases, it may be exercised by applying what might be loosely called a reasonably arguable test.  We would not – it is probably better understood as being a spectrum, rather than a test. 

“Reasonably arguable”, if that is the test for striking out a case which is otherwise inarguable and should never have been brought, having regard to all of the factors, one sees – one can look at how strong the argument is.  But anyway, we would certainly accept that it is – there will be some cases where an extension of time application could be met by showing a case that is reasonably arguable. 

That, we say, is not enough for the plaintiff.  They need to say that the scope and purpose of the provision supports a negative implication.  They need to say that the power can only be exercised by a reasonably arguable test.  However, they do not say this, because they accept that there are many cases where you do not have to apply that test.  So, their scope and purpose argument is – may I say this, extraordinarily nuanced as to how and when it can apply.

EDELMAN J:   It may be very nuanced, and there may be real difficulties at the margins in working out how some of the concepts that the plaintiff raised apply, but ultimately, does it not come down to the point that the court should not cross a boundary between determining whether or not there should be leave granted to bring the application and determining the application itself?  If those two are distinct, different concepts, the question is, whatever language might be used, has one crossed the boundary from into the other?

MR LLOYD:   I accept that they are two different concepts, but we are only looking at the first concept and whether or not, in deciding whether or not to grant or refuse leave, you are required – at least in some cases – to only look at whether the matter is reasonably arguable.  So, for example, would my friend say, or would my client be able to say, well, Justice Nicholas looked at the argument, and he looked at the substance of the argument, and he thought it was brilliant, and he granted leave, and then we will say, well, hang on, but he did not look at it – he did not do the reasonably arguable test first.  Would an applicant not – perhaps that is a facetious way of looking at it, but putting it a different way, could an applicant not say my argument is not just reasonably arguable, it is actually pretty good, it is higher than reasonably arguable.

You do not have to decide that it is necessarily a winner, but you are not constrained to looking at it being reasonably arguable.  You can have regard to how good I say it is and take that into the balance.  We say that, having regard to how the argument is presented to the court, the court is not constrained to apply some reasonably arguable test.  It can have regard to how the argument is advanced before it, if it has the advantage of the whole argument, it can consider that, and to consider it is not to exceed the power, not to exceed the jurisdiction of the court in relation to deciding whether or not to grant leave.

Now, the plaintiff’s case is, and we say must be, given their concession as to its circumstantial elements, that the jurisdictional constraint on the court turns on how the balance of other considerations relating to the interests of justice weigh in the mind of the judge.  We say that that would be – that it would be extraordinary for a jurisdictional constraint to be one that arises depending upon the perceptions amongst a number of factors to be weighed. 

GAGELER J:   Mr Lloyd, just following through with some of your examples, if a judge, entertaining an application for an extension of time were to say, “I consider the merits of the proposed application and I am satisfied that the proposed applicant should lose on the merits, therefore I consider that an extension of time is not in the interests of justice”, would that be a permissible mode of reasoning?

MR LLOYD:   Just to understand that, so – I have considered the merits, I consider it should not be successful on the merits, and therefore I should not grant the extension of time?  In my submission, it would not be to breach even a legal requirement exercising the power, but even if it was a breach of the legal requirement, which I do not concede, it would not be a jurisdictional error, because that is – the discretion to consider that is within the jurisdiction of the court to – that would be an error of law that the court would be entitled to make, even if it was an error of law.

EDELMAN J:   If the Court has performed the wrong exercise - if the court, on the face of Justice Gageler’s example, has determined the substantive application rather than determined the application for an extension of time?

MR LLOYD:   No, not on my – and the example, if he has refused the grant of an extension of time then that is the power that has been exercised.  It is done so after the court had regard to all of the material before it, and we say the court is not precluded in considering the interests of the administration of justice to have regard to all the material before it, especially if, as in this case, the applicant advanced all the material before it, and made a case.

It was not opposed.  There is no suggestion here that the applicant said they wanted to not have the hearing at the same time.  They were held at the same time.  The applicant advanced all the argument in both matters, and the court had regard to those arguments.  Now, we do not say that the court did do what they say, which is decided at the higher threshold, but we say that even if it had have done that, that would not have been a legal error, that is the first point, and even if it was a legal error, it would not be a jurisdictional error.

If I can just provide an overview of the Minister’s case and then develop some points.  The overview is, the Minister contends that section 477A(2) requires the court to have regard to the interest of the administration of justice.  That is a phrase that allows the court to have regard to a wide range of matters advanced that includes length of delay, reasons for delay, prejudice to the respondent, prejudice to third parties, and also the merits of the underlying substantial application. 

Section 477A(2) does not state any mandatory manner for assessing the merits.  In some cases, nothing more than an impressionistic assessment will be possible on the material available when the leave is heard and determined.  In other cases, a court may have all the relevant material to hand and be in the same position as the court hearing the substantive application.  

We submit that it is within the jurisdiction of the court to identify the merits of the application in such manner as it considers appropriate in all the circumstances.  Justice Nicholas had all the relevant material and had heard the whole argument.  He was faced with a submission, which my friend has taken the Court to, that:

grounds of review lack sufficient merit to warrant the grant of an extension of time.

That was the Minister’s case which – to make it clear, although we say that the court can look at all the material, we do not say the court has to look at the material.  We accept that the court can decide on whether something is reasonably arguable and the Minister’s submission, in saying that it lacks sufficient merit, was premised on that basis.  Justice Nicholas then responded that he was:

not persuaded that ground 2 –

which was the only ground:

has any merit.

That was the only ground pressed, ground 2.  On that basis, Justice Nicholas dismissed the application for an extension of time.  The Minister contends that this reveals no error in understanding of the nature and function of section 477A.  Moreover, the Minister concerns that even if the court had erred in the manner of assessments, in the sense that it might be desirable or, indeed, even the subject of judicial guidance, as my friend puts it, that it should have applied a different threshold, we say, is not something that goes to the jurisdiction of the Court. 

Now, if I can turn now to address what we say is required to get to jurisdictional error for a court.  We note, first of all, that jurisdictional error is a special category of error in relation to which neither the Commonwealth or State Parliaments can remove the supervisory jurisdiction of the High Court or the State Supreme Courts. 

I will not take the Court to it, but authority for those propositions are Plaintiff S57 211 CLR 476 at paragraph 98 and Kirk v Industrial Court 239 CLR 531 at paragraph 100. Jurisdiction, in this context, refers to the body’s authority to decide jurisdictional error, then turns on the limits of the authority of the body to decide an issue. Then we make this submission which is drawn – unfortunately, this is not in the book of authorities, but it is from Hossain v Minister for Immigration 264 CLR 123 at 24 and the submission is that:

Jurisdictional error . . . refers to a failure to comply with one or more statuary preconditions or conditions to an extent which results in a decision . . . lacking characteristics necessary for it to be given force and effect by the statue pursuant to which the decision‑maker purported to make it.

There is some emphasis there, and we accept this, that it is a failure to comply with the conditions to such an extent, so there can be instances where some failures are within jurisdiction and other failures are too gross.  So if the court decided to not grant an extension of time because the court did not like the hair colour of the applicant, that would be, maybe, to misapprehend the function. 

Now, because jurisdictional error arises from errors as to the limits of the body’s authority to decide, and because different bodies are subject to different kinds of limits, what constitutes jurisdictional error therefore varies as between the bodies, as this Court will obviously know.  Typically, administrative decision‑makers have no authority to decide questions of law, wrongly, and conversely, typically, a court is authorised to decide questions of law wrongly. 

It follows that, at least generally, a court does not make a jurisdictional error when it decides a question of law wrongly.  In this respect, we rely upon what this Court has said in Kirk, which is in tab 10 of the bundle.  I am referring to paragraphs 67 and 68 of Kirk.  It is page 296 of the bundle – I will not read it out, but paragraphs 67 and 68 also quote from Craig.  That passage, we say, makes it plain that ordinarily, a failure to regard, or failure to have regard to some matter to which the court is required to have regard in determining a question will not amount to a jurisdictional error, and then ‑ ‑ ‑ 

GAGELER J:   Mr Lloyd, what about a House v The King error, in the context of an exercise of this discretion?  That is really one of the ways the case is put against you, I think, in reliance on Norbis v Norbis, that if you find an error that would result in the exercise of the discretion being said to transgress the limits as identified in House v The King, then you have a jurisdictional error.  What do you say about that?

MR LLOYD:   Well, about Norbis v Norbis we say that, as we apprehend the decision, and in particular – that is in tab 12 of the bundle – my friends relied upon, it was said by their Honours Justices Mason and Deane, which perhaps does not necessarily affect the judgment of all of the Justices of the Court, from pages 533 – this is 161 CLR 513, and at 533 at the judgment of Justices Wilson and Dawson, at the bottom of 533 over to page 534 their Honours take a much more, let us say, measured view as to the function or role of judicial guidance.

Justice Brennan, the fifth judge, addresses it in the first few lines at 536 of his judgment – at the first five or six lines – and then over on to page 537 – the first full paragraph on 537 – but perhaps broadly we say judicial guidance can no doubt be a very useful thing and it may be that it can give rise to appealable error but if there is a broad discretion and – just to make it clear – we are not saying that the limits of 477A(2) is a broad discretion – it is an evaluative judgment as to a state of satisfaction – but, even if it was a broad discretion, if you have a situation where – the Act confers a broad discretion on the court – it may be that after a long period of time, there will be a certain concreting of judicial guidance that might give rise to an impression that a judge who has not followed that guidance has made an error of law.

But we say that that is still one step removed from being jurisdictional error – in that jurisdictional error is a limitation imposed by Parliament and we say that it is not at all clear – and we do not read anything in Norbis supporting the idea that a body of judicial guidance can get to the level of giving rise to jurisdictional error.

I was taking the Court to Kirk – I think I had taken the Court to Kirk but I will not go back to that – 67 and 68 of Kirk.  I think I was about to go the decision of the New South Wales Court of Appeal in a recent decision that has looked at jurisdictional error in the context of courts in Quinn – which is in tab 27 of the book.  I refer the Court first of all to paragraph 12, where his Honour…..that:

Ordinarily there will be no jurisdictional error on the part of an inferior court if the court fails to take into account something it was required in law to take into account because it misconstrues the law.

It continues on.  I will not read all of that.  But I rely upon it.  At paragraph 13, his Honour gives emphasis in that first sentence to the words, it has to be:

as a condition of its jurisdiction -

Is this something that has to be done as a condition of the jurisdiction?  That is drawn from Craig – one sees that in paragraph 15.  My friend says well he is not relying upon the paragraph (b) kind of error, he relies on the paragraph (c) kind of error – I will come back to that.  Although, whether these are crisply different kinds of errors or whether there is some overlap is perhaps debatable.  In paragraph 18, we note that his Honour refers to a judgment of Justice Griffiths – we rely upon the first sentence of that:

“A more sophisticated approach is required, one which focuses central attention on the question whether an administrative decision is one which is within the authority of the decision‑maker to make.

Then over at paragraph 20, his Honour embraces that sophisticated approach also when looking at the jurisdictional limits of courts.  He says the focus must be on a question whether the assessment of what was necessary in the interests of the administration of justice was within the authority of the Federal Court to determine or was there some implied constraint that the Federal Court could not determine wrongly and still make a valid decision.

Before leaving the bundle, there is another decision of the Court of Appeal even more recent than that one in tab 31.  I go to paragraph 48 of that decision.  That is the decision of the then President of the Court of Appeal, now the Chief Justice of New South Wales.  In that his Honour identifies a category of matters that are not ordinarily jurisdictional errors as being errors which, where the court is:

“‘entrusted with the authority to identify, formulate and determine’ relevant issues, relevant questions, and what is and what is not relevant evidence” –

Then at paragraph 49 we draw attention to that and foreshadow that we will contend that 477A(2) entrusts the Federal Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed.  In the same case I draw attention to paragraph 58.  Significance is there attached to criteria or assessments or judgments which involve assessments or value judgments as being more likely to be within jurisdiction.  We will say that that is particularly apt here because the Court has to decide whether or not, having regard to the interests of the administration of justice, the extension of time is necessary – is to be characterised as necessary.

Then while this case is still open, if I can ask the Court to go to 127.  This is in the judgment of Justice Basten.  Reference is made to Project Blue Sky analysis as to whether there is a legislative intention that invalidity should result from non‑compliance.  Reference is there made to Parisienne Basket Shoes.  That was a case in which a court had jurisdiction if an application was made within two months of a given event.  The question was whether an error in determining whether or not that had happened went to jurisdiction and this Court held that it did not go to jurisdiction.  That is, it was within the authority of the court to decide that question wrongly. 

I draw attention to that because the way my friend puts his argument, not so much orally but in writing – and I think he said it once or twice orally – is that he says 477A is a gateway provision and that means it goes to jurisdiction.  We say Parisienne Basket Shoes was the ultimate gateway provision and it did not go to jurisdiction, and so we say that labelling provisions as gateway or non‑gateway provisions does not really resolve the question. 

The question is whether or not the Parliament in conferring a power to extend time, vesting that power subjectively in the court that is going to hear it, taking away any right of appeal in relation to that, that was all done at exactly the same time.  “We are going to give you this power.  You have the power.  You can decide whether to extend time.  There will be no appeal from this”.  We say that all of that is indicative of the assessment of the merits, which is not even a mandatory consideration, being something that can be considered in the circumstances of the case according to how the judge exercising the power does it and it is within the judge’s power.

I am now going to say a few things about the legislation.  The Court has been taken to it.  It is in tab 1.  I do not know that it fully needs to be open, but 476A confers - or addresses perhaps would be more accurate – the Federal Court’s jurisdiction in relation to the migration decision.  Subsection (1) then identifies four categories of migration decisions in respect of which the Federal Court has jurisdiction.  Subsection (2) provides the Court’s jurisdiction is the same as this Court’s jurisdiction under 75(v).

Now, we say – and this is something, I think, your Honour Justice Gageler raised with my friend.  We say it does not matter for our argument, whether or not one sees section 476A as itself conferring jurisdiction or as limiting the pre‑existing 39B jurisdiction of the Federal Court.  It does not affect our case in either scenario.  For present purposes, the Federal Court had jurisdiction in relation to the Minister’s decision to cancel under 501, because of 476A(1)(c).  Whether that is itself a pure conferral or just what is remaining under 39B is unimportant.

Then subsections (3) and (4) of 476A – I think my friend mentioned subsection (3).  Subsection (4) is to similar effect.  It is to stop people seeking - who have been refused an extension of time appealing to this Court as well.  So that is a clear intention by Parliament that these particular decisions uniquely should not be the subject of appeal and they were - both subsections (3) and (4) were inserted at the same time as section 477A was inserted in its present form, that is, we say at the same time that the Parliament created the power to extend time to allow late judicial review applications to be made, the Parliament also took extra steps to deny an applicant a right of appeal to the Federal Court or the High Court against a decision whether or not to extend the time. 

The plaintiff’s case is that the legislation discloses an intention, through the so‑called subject and purpose of the legislation, that an error of the kind he alleges under 477A(2) should be able to be corrected by this Court in its supervisory jurisdiction.  That means their case is that Parliament – while the Parliament did not need to make the error one that goes to jurisdiction of the Court, because it is up to Parliament to decide whether or not it goes to jurisdiction, it implicitly chose to do so. 

So, at the same time as saying, we do not want these decisions to be subject to appeals to the High Court, but we will make sure that the constraint of 477A(2) is nonetheless, in some respects, at least a jurisdictional constraint, so you can still seek supervisory jurisdiction in the High Court.

If whether or not it is a jurisdictional error is able, as we say it is, to be determined by the Parliament, then the Court should not accept a construction of the Act which says that the subject matter or the scope and purpose of section 477A is to make the assessment of merits a jurisdictional constraint, even in some circumstances. 

Going then to 477A, I think we have discussed that we emphasise the fact that it turns on the court’s satisfaction, which I have said.  We emphasise that it is not just desirable, in the interests of justice, or the interests of the administration of justice, it is necessary, which we say is not a low threshold.  It indicates a balance of considerations must reveal, when you have considered all of the matters that are relevant to the interests of the administration of justice, the court has to be satisfied that an extension of time is needed.  Absent such a need, then the time limit in subsection (1) should prevail. 

We note that 477A(2) is in materially identical terms to a number of other provisions, including 486A(2), and it is orthodox to read the same language in different provisions as meaning the same things.  We referred to a case in footnote 2 of our submissions, for that, I think uncontroversial, proposition.  This means that the law applicable to those co‑ordinate provisions may also provide assistance.  The reference to “the interests of the administration of justice” is a broad expression.  It allows a court to look at a myriad of facts and circumstances, however it does not make any particular one of them mandatory. 

I think in our outline and in our written submissions we referred to a number of cases which say that.  Because my friend has very clearly said it I will not take the Court to any of them.  Cases may provide guidance in making an evaluative judgment.  Parliament has, perhaps unusually, identified the satisfaction of the court about the interests of the administration of justice as a subjective test, rather than an objective test as to the needs of the administration of justice.  We say that that subjective test reinforces the view that the decision‑making power or the authority to decide is vested only in the court exercising that power.

I was going to take the Court to a case called CZA19, where the Court noted that the various cases which address how it is desirable to look at extension of time applications are characterised as judicial guidance, but my friend has accepted that that is a fair characterisation, that all of the cases are as judicial guidance.  We accept that. 

We say that Norbis v Norbis does not assist him in saying that it becomes a jurisdictional error but, if anything, it would assist us in saying that it is obviously guidance that courts should have regard to, and it is desirable to have regard to, but that the failure to have regard to it is not a legal error, let alone a jurisdictional error.

So we say that what is called for under 477A(2) by the court is for the court to identify, formulate and determine the relevant issues, the relevant interests of the administration of justice, and that notion of authority to identify, formulate and determine relevant issues is something which, as I have already taken the Court to, is identified as something which is typically within the Court’s jurisdiction to make a right or wrong decision about.  We say the operation of 477A or the co‑ordinate provisions can also provide some assistance, and this Court has looked at 486A in the context of – and in a case called Wei, which is in tab 15 of the book, in particular, in paragraph 42 in the second sentence – or the third sentence:

Section 486A operates rather to regulate the procedure applicable to the exercise of the jurisdiction that has been invoked by the making of such an application where the application has not been made within thirty‑five days of the date of the decision which the plaintiff seeks to challenge.

So understood in that way the order was an extension of time.  An order for an extension of time – it was an extension of time to the date of the making of the original application to this Court.  One sees that at the end of paragraph 40.  That was the extension of time that was granted.  That approach is, as I apprehend it, consistent with the policy of the Federal Court and the Federal Circuit Court.  They also extend time to the time in which the application for the extension of time is filed.  So we say that the provision – that 477A(2) also can be seen as a provision that regulates the procedure applicable to the exercise of the jurisdiction conferred either by 39B or 476A.  Section 477A does not prevent the making of an application for judicial review. 

GAGELER J:   Mr Lloyd, I just question that last submission.  If there is already a matter within the jurisdiction of the court but there is a procedural bar that needs to be got over, being the grant of an extension of time, if an extension of time is not granted then does there not need to be a further order that the matter that is already in the jurisdiction of the court be dismissed?  I mean, as I understand it, these other provisions, as distinct from section 486A, proceed on the basis that there is simply no jurisdiction in the Federal Circuit Court or the Federal Court to entertain the application unless there is an extension of time granted.

MR LLOYD:   I understand what your Honour says.  I am not sure that the practice of the other courts is entirely consistent one way or the other.  It would be true to say that unlike in this Court, so there is a case which I do not think I was going to go to, but a decision of Justice Edelman’s in KDSP, where his Honour refused the application for an extension of time, and then dismissed the application, so two orders, which I think is what your Honour is putting to me.  Can I just say about that case, that is a case where his Honour considered the substantive merits of the matter, not just at a reasonableness standard, we say, and we say there was no error done in doing that.

The only reason why I do not embrace what your Honour Justice Gageler has put to me entirely is because the practice of those courts has, I think, been to follow Wei and extend time to the date of the making of the extension of time application.  If, in fact, there was no application done until the extension of time had been granted and an actual application was filed, then all of the extension of time orders should have been made to the date on which the application, the substantive application to the court, was done, rather than to the date of the making of the extension of time application.

So, I am not saying it is something this Court needs to get into in this case, but I think the practice of those courts has been to only extend time up until the date of the making of the application for an extension of time, which is what this Court does, on the premise that, on that same – that that date is also the date when an application starts in this Court. 

GAGELER J:   Mr Lloyd, we are concerned with a case where there has been – not an extension of time, but a refusal of the extension of time, and if there were already a matter in the jurisdiction of the Federal Court or the Circuit Court, as the case may be, would not a further order in the nature of that made by Justice Edelman in this Court be required, on that procedural view, with the operation of those provisions?

MR LLOYD:   It would certainly be a desirable practice.  I certainly accept that.

GAGELER J:   Which would result in an appealable decision.  You see, it does actually feed into the controversy in this case, to understand how these provisions operate.

MR LLOYD:   I see what your Honour says.  Well – yes, I suppose then, on the logic of it, and the fact that they do not make those orders, the logic must be whether their extensions of time are long enough or not in the past that the matter has not been started there, and there is no dismissal of the substantive application.  I see what your Honour puts to me, and I accept that that makes sense.  I will depart from what I just said about the similarity of them, and accept that this Court is, in fact, a bit different to the other courts in that respect.

I will move on to deal with the “context and purpose” argument.  As we have already indicated, the plaintiff, we say, has no textual support for the outcome they seek.  Their case turns on some form of implication from the context and purpose of section 477A.  I turn to address that.

In our submissions, we set out a decision of this Court in Certain Lloyd’s Underwriters Case.  I will not read those out or go to them in light of the time.  The gist of it is that one does not just identify a purpose outside of the text, say that it is not inconsistent with some extrinsic material, and then infer that it is a purpose in the statue, which is what we say they have done. 

One identifies the purpose from the text and the structure.  Here, there are two important elements.  One is that the legislation confers the power on the court only when it is satisfied that it is necessary – “necessary”, we say, is a high bar.  One sees that in the extrinsic – so support for the notion that it is a high bar is seen in the extrinsic material which can be found at tab 38 of the bundle.

First of all, in paragraph 86 of the explanatory statement, what one sees in that provision is the notion that there needs to be a compelling reason to grant an extension of time.  That is, of course, the idea that “necessary” is done to have a high bar.  The second structural consideration is that the power to extend time was expressly removed from what otherwise would have been an appeal right.  If 476A(3) had not have been there, there could have just been an appeal.  But we say that putting that…..legislative disinclination – for decisions not to extend time to be able to be challenged and one sees that in the extrinsic material as well at paragraph 113.  The object of 476A(3) was to strengthen the new time limits for applying for judicial review of migration decisions. 

Now, we say nothing in the language of 476A(2) imposed some jurisdictional constraint.  Paragraph 81, one sees – I mentioned earlier, I think in answering Justice Gordon’s question – some reference to the history of the time limits.  That is explained at paragraph 81 as to how the old time limit had basically become – at least effectively – ineffective, and there was a desire to make them effective again.  One sees that on page 2 of this extrinsic material in the outline – the second dot point was to:

reinstates effective and uniform time limits –

So that all suggests the desire was to limit it, albeit with the exception for what was necessary in the interests of the administration of justice.  That was in limit.  Then against us, at the bottom of page 980 or page 2 – or not at the bottom, but towards the bottom, there is a paragraph that ends with a reference that my friends rely upon:

Vesting the Courts with such broad discretion will protect applicants from possible injustice.

My friend uses that to say that the notion of protecting applicants from possible injustice can only be served if the reasonably arguable test is applied.  Now, we do not agree that you can get a purpose out of that kind of language anyway, but even if you could, we would say nothing about that abstract purpose insists that the court looks at the substantive merits of an application, or one that does look at it is denying someone justice.  To look at someone’s actual argument in detail and give it proper and full consideration is not to deny someone justice.  One might have thought it was the reverse of that.

We say a judge that hears an application for an extension of time at the same time as a substantive application is not failing to protect an applicant from injustice.  If a court has regard to whether the application has merit – as happened in Wei in this Court – or has no merit – as happened in this case – the court is seeking to serve the administration of justice – is not undermining or failing to provide justice.

Then in paragraphs 35 to 41 of our submissions, we refer to some judgments that we say are analogous.  Perhaps I can deal with that very briefly.  I have mentioned it sort of succinctly already.  In that case, we say – and we give the references in our written submissions – in KDSP, Justice Edelman in refusing the application and dismissing it, his Honour looked at the substantive matter and we say that did not reveal any error under 486A – and any error in understanding what was necessary in the interests of the administration of justice.  We say that would also be true in this case, even if that is what Justice Nicholas had done – which we say has not been established.

In our submissions at paragraphs 42 to 50, we address the authorities that the plaintiff relies upon.  In essence, in paragraph 43, we identify three that provide some support.  In paragraph 49, we say there are three that provide us with some support.  In paragraph 46, we identify four that really are not on point.  But we say that this Court in this case will decide the merits of it.  We have said already as matters of principle as to why we say to the extent that DHX is against us, why we say it is wrong – that it is not jurisdictional error.

Also, we would say that while it might be desirable and useful in many, many instances for courts to apply a reasonably arguable test, we do not say that it should even be characterised as a test that should be applied.  It is just one that may be applied when it is a useful test.

Finally, if I just address what we say happened in this case – we address that in 51 to 59 of our written submissions.  We have already taken the Court to paragraphs 7 and 8 of Justice Nicholas’ reasons and we say that that shows that his Honour actually found that there was not any merit and concluding that there was not any merit is sufficient, even on what my friend says the test is to not constitute a misapprehension of the nature of his function.

Then, we also say – or we have said for reasons advanced in our submissions that even if the formulation is understood to reflect not an impression of the merits but a considered decision on the lack of any merit – no jurisdiction has been established.  We note that the applicant’s case relies upon the impact of the decision on his so‑called right of appeal.  We have said that there is not a right of appeal – I do not repeat that now.

But what I do want to say here, which is a different point, is that this is not a case where my friend has come along and said, “Look how good my argument was that Justice Nicholas rejected”.  There is none of that here. 

He has not shown that his so‑called right of appeal had any value.  He has not said that it was a meritorious case.  He has not asked the Court to find that. 

In the balance, if the Court is meant to look at all of the circumstances to find out if there is a jurisdictional error, which must include, presumably, whether or not there is a material jurisdictional error, he has not made out an argument that the loss of the right of appeal is something which is a material loss to him in the circumstances of this particular case.  We say that that is not something that could be agitated in any reply so that, in all those circumstances, we say the appropriate thing to do is to dismiss the application with costs.  May it please the Court.

KIEFEL CJ:   Yes, thank you, Mr Lloyd.  Reply, Mr Jones?

MR JONES:   Yes, your Honour, just a few brief points.  Your Honour Justice Gageler put the point to my learned friend as to whether, if the judge had said he had considered the merits and was therefore satisfied that the application should be refused, whether that was a jurisdictional error.  That point was resisted by my learned friend, we say wrongly.  That would be a jurisdictional error, and it is revealing of the fact that the position of the Minister on this application is essentially that there is no limit to the jurisdiction to extend time in 477 and 477A.

That is what is said expressly at paragraph 9 of my learned friend’s written argument, or outline of argument, to say that because Parliament removed the appeal right, it can be taken that it was also intending to remove any ability of this Court, or indeed, it should be supposed, analogously, the ability of the Federal Court to challenge on a judicial review that decision by way of jurisdictional error. 

We do not say this is a case where there has been a mere error of law.  The threshold we have to meet is that there has been a misapprehension of the function that is being performed, and we say such misapprehension arises from a treatment of the merits on the substantive basis rather than the threshold basis.

My learned friend has said that on some occasions, a reasonable arguability test would be appropriate, but not others.  He said it would be appropriate when there is limited material before the court.  In my submission, the appropriate test that is to be applied to the plaintiff or applicant’s claim should not differ depending on the amount of material that is before the court, or, indeed, the time that a court spends thinking about it.  In circumstances where there is a radical change in the rights of the applicant as a result of the decision, the test should be the same in all circumstances, and it is quite right to say that the right of appeal has not been extinguished if an applicant does not have one until the extension of time is granted, but it certainly is a key feature of this statutory scheme that a right of appeal is absent where no extension of time has been granted.

My learned friend took you to Norbis and the judgment of Justice Brennan.  If I could just also alert your Honours to another relevant passage of that judgment, which is at page 337 of the report and page 353 of the joint book of authorities.  My learned friend took you to the passage at the top of the page, but if one goes down to the last paragraph, his Honour observes:

There may well be situations in which an appellate court will be justified in setting aside a discretionary order if the primary judge, without sufficient grounds, has failed to apply a guideline in a particular case . . . But the distinction must be maintained and a failure to apply the guideline cannot be treated as an error of law:  a failure to apply the guideline is no more than a factor which warrants a close scrutiny of the particular exercise of the discretion.  What cannot be shut out is the discretion of a primary judge not to apply the guideline –

on the circumstances of the case.

Now we endorse that, and if my construction of the learned judge’s judgment is correct, it is not the situation that his Honour has decided to depart from the guideline because the guideline is not appropriate on the facts of the particular case, the guideline has not been applied because an error has been made in terms of the function that is being performed in relation to the application to extend time.

Your Honour Justice Gageler made the observation about the House v The King test and I would remind the Court in that regard of the observations of Justice Mason in Peko‑Wallsend – which of course your Honours are familiar with – but it is (1986) 162 CLR 24 – where his Honour said at 42:

But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion.

So, we say those passages of Norbis v Norbis assist in showing the connection between the failure to follow the guidance in this case and the existence of a jurisdictional error through the misapprehension of the limits of power.  My learned friend referred to the decision of the New South Wales Court of Appeal in Quinn.  That decision is not a radical one, in my submission.  It is an authority for the proposition that a mere error of law does not necessarily goes to jurisdiction, it is the starting point and not the end point.

Of particular concern in that case was the particular consequences of the statutory scheme that would flow from the finding that a non‑compliance with section 66(2) of the Crime (Sentencing Procedure) Act was jurisdictional and his Honour Justice Leeming said that was a large question which would have consequences if it were jurisdictional, such as people in prison were unlawfully imprisoned because their intensive correction order had not been considered and the people out in the community, on such an order, could be returned to prison.  Now, those are obviously matters that are not present in this case.

Rather, the consequence that should be of concern to the Court in this case is that, absent a proper constraint on the powers to extend time, the exercise of those powers not only by the Federal Court but also by the Circuit Court would go unchecked and unreviewed.  The reality is that there are errors, and very significant errors, made in the exercise of those discretions and that the threshold to arrive at is a high one – is whether the court has misapprehended the scope of the power – but it nevertheless is the threshold that will be reached and particularly where the merits are dealt with in the manner we say they were in this case.

Your Honours, in relation finally to section 486A, we say first of all that the case law in relation to that particular provision is not of assistance in determining whether there is jurisdictional error arising under 477 or 477A.  There is an appeal right from such a determination in this Court, with or without leave.  This Court obviously has no scenario in which it will consider whether itself has committed a jurisdictional error in that regard and that question has never been considered by the Court in that context.  So, we say that is not of great utility.

In relation to your Honour Justice Gageler’s point about how these provisions work, certainly if one looks at 476 through to 477A, the provisions relating to the grant of an extension of time do appear to proceed on the basis that the court otherwise already has jurisdiction and that it is operating in the same way as Justices Gageler and Keane found in Wei.  It operates in section 486A.

However, what occurred in this case, and in my experience is the general practice, is that the application for review is not filed at the time that the application for an extension of time is filed.  So, if an extension of time is granted the result is that at that point the applicant is then entitled to file an application for substantive review. 

So, in that situation, the extension of time, looked at, properly construed, should be made up until the date on which the extension of time was determined.  But, in any event, if there was a further order pursuant to how your Honour Justice Edelman dealt with it in KDSP that said, well, I reject the extension of time and therefore I refuse relief in relation to a matter of which the Court was seized, true it is that the final order would then be an appealable decision to the Full Federal Court, but it would not be one with a high prospect of success in circumstances where the decision was based on a prior refusal of an extension of time, which refusal is, itself, on the statutory scheme, not open to challenge. 

So, looked at in that way, we say there is nothing that can be drawn from section 486A which would undermine the position we advance in this case, which is that ultimately we must show a misapprehension of the scope of the power, and we do say that dealing with the merits on a substantive basis constitutes such misapprehension.  Your Honour, those are my submissions.

KIEFEL CJ:   Yes, thank you, Mr Jones.  The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow.

AT 12.48 PM THE MATTER WAS ADOURNED