FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE – application seeking leave to appeal from judgment out of time – Federal Court Rules – whether “special reasons” – discretionary factors – length of delay – reason for delay – detriment faced by parties.

Federal Court Rules O 52 rr 15(1)(a), (b), (2)

Migration Act 1958 (Cth)

Jess v Scott (1986) 12 FCR 187, distinguished

Wolcott v Davis (1984) 4 FCR 124, discussed

Comcare v Ahearn (1993) 119 ALR, distinguished

Easterday v Australian Securities Commission (1996) 43 ALD 781, cited

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, cited

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v

RODA KABAIL, NASIR BARUD and MUNA BARUD

NG 1039 OF 1998

TAMBERLIN J

SYDNEY

20 OCTOBER 1998

THE COURT ORDERS THAT:

1.         The application is dismissed with costs.

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

REASONS FOR JUDGMENT

This is an application by the Minister seeking leave to appeal out of time from a judgment of Burchett J delivered on 3 September 1998.  His Honour set aside the decision of the Refugee Review Tribunal (“RRT”) and remitted the matter for consideration in accordance with law.

The respondents are a Somali woman, who arrived in Australia on 12 March 1998 and her son, Nasir and daughter, Muna, who arrived with her.  On 5 May 1998, she gave birth to another daughter.  All four members of the family have been detained and are currently held in detention at the Villawood Detention Centre pending determination of their application for refugee status.

The circumstances which give rise to the application are set out in an affidavit of the solicitor handling the matter on behalf of the Minister.

This affidavit discloses that after judgment was handed down on 3 September 1998 instructions were sought by her.  The instructions to brief counsel were received on 18 September 1998.  The solicitor then consulted the Federal Court Rules and noted that under O 52 r 15(1)(a) the notice of appeal had to be filed within 21 days of judgment being pronounced; that is to say on or before 24 September 1998.  Unfortunately, however, in the draft brief to counsel the solicitor wrongly indicated that the appeal period expired on 1 October 1998.  The brief was delivered on 22 September 1998 and the draft grounds of appeal were provided by counsel on 29 September 1998.  On 30 September 1998, the grounds of appeal were approved and the solicitor sought to file the notice of appeal on 1 October 1998.  The Registry refused to accept the notice of appeal on the basis that it was filed outside time. The present notice of motion seeking extension of time was filed on 2 October 1998.  The application was heard on 14 October 1998.

No evidence was led either from the Department or the barrister to explain the lapses of time which occurred whilst the matter was under consideration by either of them.  Nor is there any precise indication given as to when instructions were sought by the solicitor as to whether an appeal should be instituted.

The power to grant an extension of time is conferred by O 52 r 15(1) and (2) of the Federal Court Rules, which provide as follows:

15(1)   The notice of appeal shall be filed and served -

(a)       within 21 days after -

            (i)         the date when the judgment appealed from was pronounced;

            (ii)        the date when leave to appeal was granted; or

            (iii)       any later date fixed for that purpose by the court appealed from; or

(b)       within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.

(2)       Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.” (Emphasis added)

Section 15(2) indicates that if a notice of appeal is to be served outside the 21 day period, it is necessary for the Court to be satisfied that there are “special reasons”.  This is to be contrasted with the requirements set out in r 15(1)(b), which does not require any special reasons to be shown in circumstances where the extension application is filed within the 21 day period.

Nevertheless, because the discretion conferred is to be exercised in a judicial manner, some basis ought to be shown for the Court to grant an extension under r 15(1)(b).

The general principles concerning an extension were recently referred to by R D Nicholson J in Easterday v Australian Securities Commission (1996) 43 ALD 781 at 728, where his Honour set out the general principles as expounded by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-350.

The expression “special reasons” was specifically considered by the Full Court in Jess v Scott (1986) 12 FCR 187 at 195, where the Court said:

“It should not be overlooked that r 15(2) enables leave to be given “at any time”, the “special reasons” relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period.  It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late.  “Special reasons” must be understood in a sense capable of accommodating both types of situation.  It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.” (Emphasis added)

In that case, the notice of appeal was filed one day after the last day for filing and there was no suggestion of any prejudice.  The case concerned an industrial matter.  Furthermore, there was evidence that the solicitor for the applicant for the extension had not been in Court when the judgment was handed down and had not appreciated the date when judgment was delivered.  In the present case, on the other hand, the solicitor frankly states that she was aware that 24September 1998 was the last day for filing the notice of appeal but presumably did not recollect this when the brief to counsel was prepared.

In the Jess v Scott (supra), the Court referred to a decision of Muirhead J in Wolcott v Davis (1984) 4 FCR 124, where his Honour, in relation to a notice of appeal which was 6 days out of time, said at 128:

“It could seldom be said that the failure of a solicitor to institute an appeal in time, caused by ignorance or negligence rather than by fortuitous circumstances, such as sickness or accident constituted special reasons.

…

These matters would certainly be relevant if I were exercising a general discretion, but the notice of appeal not having been filed I consider I am bound to determine the matter on the basis the Rules provide.  I am concerned as to the past fortunes of the appellants in this litigation, but I cannot categorise the reasons for the failure to institute the appeal itself by filing the notice in time as in “special” within the meaning of the Rules or the authorities.”

Although that decision was adverted to in Jess v Scott, it appears that the Full Court adopted what it perceived to be shift of judicial opinion since the earlier English cases in favour of a broader approach: see Jess v Scott at 190.

More recently, the Full Federal Court considered the general principles relating to an extension of time in Comcare v Ahearn (1993) 119 ALR 85.  The proceedings in that case were issued 17 months out of time due to “inexcusable delay” on the part of the solicitors but not on the part of the client.  There was no requirement to show “special reasons” under the applicable Rules in that case.  The Full Court decided that the AAT had erred in law in considering that it was necessary to provide “an acceptable explanation” for the delay and in visiting the delays of the solicitor on the client. The case concerned a claim for compensation for personal injury.  The Court cited Jess v Scott as representing one of the “modern authorities.”  However, the factual situation in that case is quite different from the present.  It does not shed any light on the expression “special reasons”.

In the final analysis, little real assistance can be gained from comparing different factual situations.  The characterisation of “special reasons” in this context, is a matter which is both discretionary and fact specific.  It is evident that in the present case the circumstances before the Court were quite different to the cases discussed above.  I am not persuaded that a sufficient case has been made out to warrant the grant of an extension of time.  There are two principal bases for this conclusion.  The first is that I am not satisfied that there are any “special reasons” to warrant the grant of an extension.  The second independent and alternative basis is that as a matter of discretion, I am not satisfied an extension ought to be granted.

In relation to special reasons, although an explanation has been made as to what occurred, there is nothing unusual or out of the ordinary indicated in that explanation.  For example, there is no indication of an occurrence in the nature of any illness, accident or absence in relation to anyone concerned in pursuing an appeal.  There is no reason furnished as to why instructions were not given to the solicitor until 18 September 1998 to brief counsel, nor is any explanation given as to why counsel did not advert to the expiry date, apart from the statement that the wrong expiry date was indicated in the instructions.  Essentially the basis given is one of inadvertence and this, of itself, is not sufficient to establish a special reason, although it can, of course, be taken into account.

I also take into account the relative shortness of the delay in the matter but, again, it does not amount to a special reason, either taken alone or cumulatively with other considerations to which I refer.  The possibility that an appeal from the judgment of Burchett J may further clarify the law or that it may succeed is not, on its own, or even in conjunction with the other factors, sufficient to establish a special reason in the circumstances of this case.  For these reasons, I am not satisfied that any special reason has been shown within the meaning required by s 15(2) of the Rules.

Secondly, even if a special reason had been shown, I am not satisfied that I ought to exercise my discretion in favour of the applicant.  A significant difference in the present case to that in other authorities referred to, is that the applicant is presently held in detention with her three children pursuant to the provisions of the Migration Act 1958 (Cth) pending the determination of her application.  In my view, any unwarranted deprivation of liberty, even for a relatively short period of time, is a significant matter to take into account.  In the present case, the prejudice to the applicant and her three children, by the risk of exposure to a further period of detention than would otherwise be necessary, is of great importance.  In the normal course, it is likely that the additional period of delay required to present and determine the appeal would be reflected in a further period of detention.  The authorities referred to earlier do not suggest that there is any similar prejudice.  Furthermore, the issue in the present case concerns a question of immigration status.

If the extension is not granted, then the matter will be forthwith remitted to the RRT for determination.  No doubt due consideration will be given to the predicament of the first applicant and her children and the matter will be heard and determined with due expedition.

On the other hand, if the application is granted then there will be a hearing before the Full Court and the inevitable lapse of time will expose the applicants to the risk of a substantial period of further detention than would be the case if the matter were remitted to the RRT for determination in accordance with the law, as decided by the primary Judge.  In cases where the applicant is held in detention, it is imperative that the application proceed in a timely and efficient manner.  The present case is particularly sensitive, of course, because it involves the detention of a mother with three young children in circumstances where the Court has no power to permit release from detention pending determination of their application, unless they are granted a visa: see s 196 of the Migration Act 1958 (Cth).

It is also relevant, on the question of discretion, in my view, to take into account of the fact that if the application is remitted to the RRT in accordance with the orders of Burchett J for reconsideration, then if any error is made in that reconsideration, the review and the appellate procedure is available to deal with such a contingency.

In the light of the foregoing considerations, I conclude that no “special reasons” have been made out.  In any event, I am not disposed to exercise my discretion in favour of granting an extension of time.  Accordingly, I dismiss the application with costs.

Associate:

Dated:              20 October 1998