Walmsley v Secretary, Department of Education, Employment and Workplace Relations

[2008] FCA 1844

FEDERAL COURT OF AUSTRALIA

Walmsley v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1844

VICTOR RAYMOND WALMSLEY v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

NSD 1563 of 2008

EMMETT J
31 OCTOBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1563 of 2008

BETWEEN:	VICTOR RAYMOND WALMSLEY Applicant
AND:	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	31 OCTOBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the proceeding fixed in the sum of $1,200.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1563 of 2008

BETWEEN:	VICTOR RAYMOND WALMSLEY Applicant
AND:	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	EMMETT J
DATE:	31 OCTOBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant applies for an extension of time within which to file a notice of appeal from a decision of the Administrative Appeals Tribunal (the Tribunal). Under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act), an appeal lies as of right, but only on a question of law.  The extension of time is opposed by the respondent, the Secretary of the Department of Education, Employment and Workplace Relations (the Secretary).  When the matter came before me last week, the applicant was informed that the Secretary took the view that there was no question of law raised.  I indicated that, having looked at the reasons of the Tribunal and the material filed in support of the application for extension of time, no question of law had been identified. 

2. The matter was adjourned to enable the applicant to get some legal assistance, if he was able, and to identify a question of law that may be the subject of the appeal.  The applicant was also given the opportunity to file some further evidence, if he wished explaining why he did not file a notice of appeal within the time prescribed. 

3. The applicant has filed some additional evidence.  However, the only explanation given for the failure to file the notice of appeal in time is that the applicant sought legal assistance and was unable to obtain legal assistance without cost.  When the matter was called on again today, he acknowledged that he has been unable to identify any question of law that could be raised in an appeal from the orders of the Tribunal.

4. In the circumstances, I am not persuaded that there is an adequate explanation for the delay that would justify granting an extension of time.  In any event, even if there were, there would be no utility in doing so, since the appeal must necessarily fail because no question of law is involved.  Accordingly, I propose to dismiss the application filed on 3 October 2008. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        4 December 2008

The applicant appeared in person.
Counsel for the Respondent:	Mr A Carter
Solicitor for the Respondent:	Sparke Helmore

Date of Hearing:	31 October 2008
Date of Judgment:	31 October 2008