Bittman v Australian Securities & Investments Commission

REASONS FOR JUDGMENT 1 On 19 March 2007 the applicant sought an extension of time to apply for leave to appeal from a judgment of the court given on 21 December 2006, whereby the applicant's Notice of Appeal from a decision of the Administrative Appeals Tribunal ('the Tribunal') given on 21 August 2006 was struck out. The applicant would require leave to appeal because an order of the kind made by the court on 21 December 2006 should be regarded as interlocutory: Re Luck (2003) 203 ALR 1; Rana v University of South Australia (2004) 136 FCR 344. 2 I propose to approach the present application by reference to the following questions: (a) Does the applicant have a satisfactory explanation for not complying with the time limits prescribed by the Rules of Court? (b) If time were extended, would the applicant's application for leave to appeal have reasonable prospects of success? (c) Would the respondent be prejudiced by the granting of an extension of time? 3 In the circumstances of the present case, the time limited by the Rules within which the application for leave to appeal ought to have been made is seven days after the date of the judgment: O 52 r 2A(b). Here the judgment was given on 21 December 2006 and, by the operation of O 3 r 2(4A), the seven days expired on 19 January 2007 - two months before the making of the present application. 4 The applicant filed no affidavit by way of explanation for his failure to make application for leave to appeal within the time limited by the Rules. However, his application for extension of time refers to the Registry's refusal to accept for filing Notices of Motion which he attempted to file on 7 January, 25 January and 21 February 2007. No further particulars were provided in the application, but the applicant, who appeared on his own behalf, explained to me that he had attempted to file Notices of Motion which variously sought to have the judgment of 21 December 2006 set aside as having been obtained by fraud and to have the Registry's refusal to accept such Notices of Motion reviewed by a Judge. None of those notices was an application for leave to appeal. 5 I do not regard the applicant's unsuccessful attempts to have the Registry accept for filing various Notices of Motion as constituting a satisfactory explanation for his failure to apply for leave to appeal in time. It is not as though the applicant has made genuine, but unsuccessful, attempts validly to file an application for leave to appeal before he made the present application on 19 March 2007. To the contrary, the existence of his attempts to file other Notices of Motion tends to suggest that the application for leave to appeal was only a port of second recourse for the applicant. 6 Turning next to the matter of prospects of success, on 21 December 2006, the court struck out the applicant's Notice of Appeal from the decision of the Tribunal upon the ground that it did not reveal a question of law as required by O 53 r 3(2)(b) of the Rules of Court, and by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). In the court's reasons published that day, the terms of the applicant's Notice of Appeal from the Tribunal's decision are set out. I need not restate them here. It is palpable that they do not reveal a question of law. With respect, I consider that the proposition that the court erred in striking out the Notice of Appeal is unarguable. 7 Indeed, in his submissions before me, the applicant did not seek to demonstrate error in the court's reasons of 21 December 2006. He said that he had no disagreement with the judgment of the court, insofar as it was based (as necessarily it had to be) on the material then before the court. His point, rather, was that the respondent was somehow at fault for not having revealed to the court other material which might have made a difference, or for confining its arguments (on the application to strike out the Notice of Appeal) to purely technical or jurisdictional matters. The more the applicant developed the basis of his complaint in this regard, the more it became apparent that his objective was to use his appeal from the Tribunal as a vehicle to ventilate various factual matters which lay behind his original attempt to invoke the jurisdiction of the Tribunal (further details of which may be seen from an earlier judgment of mine in the same proceeding: Bittman v Australian Securities and Investments Commission [2006] FCA 1532). Whatever issues the applicant may have with the respondent, the only question which was before the court on 21 December 2006 was whether the applicant's Notice of Appeal from the Tribunal's decision was competent. Of necessity, that was a technical question. 8 There is nothing to suggest that the respondent would be prejudiced by the granting of an extension of time. 9 However, my view about the applicant's prospects of success on an application for leave to appeal, taken with the absence of a satisfactory explanation for the applicant's failure to make his application for leave within the time limited by the Rules, leads me to the conclusion that the present application for an extension of time should be dismissed. I shall so order. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.