Croker v Minister for the Department of Finance and Deregulation

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an application for an extension of time to file a notice of appeal under r 36.05 of the Federal Court Rules 2011 (Cth). Mr Croker filed the application for an extension of time one day after the end of the 21 days in which he might have filed a notice of appeal from the judgment of the primary judge in Croker v Minister for Finance and Deregulation [2011] FCA 1188. 2 In his affidavit in support of the present application, Mr Croker argued that he lodged the notice of appeal with the Registry on the last day in the 21 day period, namely, 7 November 2011. He said that he applied for a deferral of the fee payable for filing such matters on that day, but his application was not then granted. He argued that as a result, he should be allowed to have the extension of time that he now seeks, based on his previous experiences of the Registry's reduction of the filing fee that he would otherwise have had to pay under reg 10 of the Federal Court of Australia Regulations 2004 (Cth). 3 The draft notice of appeal contains 10 grounds, none of which could be said to identify any arguable error made by the primary judge. Leaving to one side the grounds that the judgment had allegedly "instilling gross miscarriages of justice, unnecessary delay and there [sic] habitual gross and wilful acts of misconduct" and that the application had high prospects of success, the grounds make such assertions as: his Honour failed to recognise that the Minister's decision failed to abide the doctrine of natural justice and natural law; that in determining whether or not to make an act of grace payment under s 33 of the Financial Management and Accountability Act 1997 (Cth), the Minister had to follow some moral obligation to pay legitimate claims and keep litigation to a minimum; the Minister's acts and omissions were incompetent; and the Minister's decision was an improper exercise of power in not acknowledging Mr Croker's permanent disability and impairment. In my opinion, none of these grounds has the slightest substance. 4 An application for an extension of time in which to bring an appeal is governed by the considerations identified by in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J and at 540-541 [66(4)] per Kirby J, who approved what Lord Denning MR said in Reg v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091, namely: "We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time." 5 As Brennan CJ and McHugh J went on to point out (Krakouer 195 CLR at 519-520 [4]): "… the respondent to the application has a vested right to retain the judgment, the subject of the appeal. To grant an application for an extension of time is to put at risk a vested right of the respondent." (footnote omitted) 6 The rules no longer contain a requirement that an application seeking an extension of time in which to file a notice of appeal requires an applicant to establish special reasons, as was the case under O 52 r 15(2) of the Federal Court Rules 1979 (Cth): Jess v Scott (1986) 12 FCR 187 per Lockhart, Sheppard and Burchett JJ. 7 The primary judge gave a careful judgment in which he reviewed each of the arguments advanced by Mr Croker for the purposes of establishing that the Minister, through his delegate, allegedly erred in refusing to consider it appropriate to authorise the making of a payment to Mr Croker under s 33 of the Financial Management and Accountability Act. The primary judge considered each of the arguments Mr Croker put. His Honour examined the authorities on what were "special circumstances" within the meaning of s 33(1), including the judgment of Weinberg J in Toomer v Slipper [2001] FCA 981. There, Weinberg J noted that such payments were not based on a legal entitlement and were made in response to moral obligations assumed by the Commonwealth as a result of the actions of its employees or instrumentalities, saying: "The power to make such payments is, by its very nature, one which is particularly suited to be exercised by the Minister. The role of the Court is to ensure that the Minister exercises that power lawfully. Provided he does so, his decision cannot be impugned." 8 The primary judge found that it was certainly not the present case that any breach of the rules of natural justice applicable to the decision making process under s 33(1) had occurred. He rejected Mr Croker's arguments that his stated illnesses and injuries were relevant to establishing some error in the decision making process to refuse him an act of grace payment under s 33. His Honour also rejected the argument that it was bad faith for the Minister to have formed a view on the facts that no defect in the administration of the legislation had taken place or that there had been maladministration. And, the primary judge also found that there was no basis for concluding that bad faith had been established against the Minister because, in Mr Croker's view, the legislation was defective. 9 Having read his Honour's careful judgment, I can perceive no possible basis on which it could be argued that his Honour made any error of the kinds described in the loose and general language in the draft notice of appeal, making allowances for the fact that Mr Croker is not a lawyer. It would be a travesty of justice if this notice of appeal were allowed to be filed, notwithstanding that Mr Croker asserted that he came to the Court on the last day for filing the appeal, unprepared for its rejection. 10 Indeed, there is considerable substance in the Minister's submission that a litigant in Mr Croker's position who relied upon, as he did in this case, his considerable experience in litigation in this Court in which he had sought and apparently obtained partial waivers of the filing fee, should have taken steps to ensure that he would obtain such a dispensation well before the last day on which he could file a notice of appeal of right. However, I do not need to decide this application on those grounds. 11 I am of opinion that the case advanced for the proposed appeal has no prospect of success and would amount to an abuse of the process of the Court. In my opinion, the application should be refused. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.