Applicant NATC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant has filed a notice of motion seeking an extension of time within which to file and serve an application for leave to appeal from a judgment of a judge of this Court who dismissed the applicant's application for an order nisi. 2 There is some confusion on the question of whether an extension of time is required, in particular as to whether the judgment of the primary judge is an interlocutory or final decision. If it is the latter, then it would appear that the applicant has filed his notice of motion within time. The notice of motion was filed on 31 December 2004 which would have been outside the time limit in O 52, r 10(2)(b) of the Federal Court Rules ('Rules'), except for the fact that O 3, r 2(4A) of the Rules provides that: 'In calculating the time fixed by these Rules or by any order fixing, extending or abridging time, the period from 24 December to 14 January next following is excluded, unless the Court otherwise orders.' 3 If, however, the decision of the primary judge is an interlocutory decision, then the position would be that the applicant required leave to appeal and that leave should have been filed within seven days. 4 In my view the primary judge's judgment is interlocutory. His Honour expressly elected to refuse the application for an order nisi saying at [16]: 'There has been no sufficient basis revealed to me why leave should be granted to extend any time that might be required of the High Court or Federal Court Rules but more importantly, there is no basis that appears from the papers why I should make an order nisi in circumstances where this matter has been the subject of full litigation on one previous occasion up to and including an application for special leave to the High Court. … I simply refuse the application for the order nisi.' 5 I have reviewed the reasons of the primary judge. In my view his Honour's judgment is correct for the reasons he gave. The applicant has not appeared at the hearing today. He was called outside the Court but still there was no appearance. In the circumstances, there is nothing to add to the material presently before the Court. There is nothing in the applicant's notice of motion or draft notice of appeal that suggests otherwise; there is no basis for re-agitation of the claims made by the applicant. 6 For these reasons, I refuse the application for an extension of time: see Gallo v Dawson (No 2) (1992) 109 ALR 319; Deighton v Telstra Corp (unreported, Lee, Heerey and Nicholson JJ, 17 October 1997); Kalaba v The Queen (unreported, Finn J, 13 September 1996); and Engler v Commissioner of Taxation [2002] FCA 620 per Nicholson J at [12]. The applicant's motion must be rejected and the applicant must pay the respondent's costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.