FEDERAL COURT OF AUSTRALIA

Burgess v Secretary Employment and Workplace Relations [2006] FCA 1725

DARREN JOHN BURGESS v SECRETARY, EMPLOYMENT AND WORKPLACE RELATIONS

NSD 1255 OF 2006

TAMBERLIN J

22 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The Secretary of the Department of Employment and Workplace Relations be substituted as the Respondent.

2.                  The application for the extension of time be dismissed.

3.                  The Applicant pay the Respondent’s costs fixed in the sum of $250.00.

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

REASONS FOR JUDGMENT

1                     This matter concerns an application for an extension of time to appeal in relation to orders made by Stone J on 27 April 2006 dismissing the appeal and orders made on 23 May 2006 awarding costs against the Applicant.  When the matter was called for hearing this morning, there was no appearance by the applicant.  It is apparent that the applicant was aware that this matter was listed for 9.30 am today, because a letter was sent to the Court Registry noting that the hearing was listed at this time and date. The letter also referred to certain matters which do not establish any sufficient ground for an extension of time.  No sufficient explanation for the delay in filing a Notice of Appeal has been put forward by the Applicant in this letter.

2                     Having considered the draft Notice of Appeal, I am not persuaded there would be any point in granting an extension of time because, in my view, there is no proper ground alleged to support the application for an extension of time.  I have also considered the affidavit filed on 29 June 2006 in reaching this conclusion. 

3                     Accordingly, the order of the Court is that the application for an extension of time to file and serve a Notice of Appeal is dismissed.  I make this order on two bases: first, the non-appearance of the Applicant; and second, that having regard to the grounds set out in the Notice of Appeal and the material which has been filed, I consider that there is no reasonable case to be argued.  Therefore, the matter is dismissed with costs.

4                     The Respondent has sought an order for costs in a lump sum in an amount of $250.00.  In my view, this is not unreasonable, having regard to the need to consider the matter and appear this morning in circumstances where the applicant did not consider it necessary to appear.  Accordingly, I order that the Applicant pay the Respondent’s costs fixed in the sum of $250.00.

Associate:

Dated:         11 December 2006