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[2002] FCAFC 365
procedural. Application for an extension of time within which to seek leave to appeal refused. The Minister was ordered to pay the respondent's costs of the application.
The Minister filed the application for leave to appeal late and did not provide an adequate explanation for the delay. The underlying issue was still being considered by the primary judge, and the Full Court considered that the Minister was trying to appeal reasons and findings rather than an operative order. It also concluded that refusing more time would not cause substantial injustice, because the only claimed harm was a costs order that was unlikely to be overturned. The extension was refused.
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2,440 words · generated 01/10/2026
The Federal Court Full Court, comprising Spender, Drummond and Marshall JJ, dealt with the Minister for Immigration and Multicultural and Indigenous Affairs' application for more time to seek leave to appeal. The proposed appeal concerned interlocutory orders made by Kiefel J on 28 June 2002. The Full Court had already made its orders on 18 November 2002, refusing the extension and requiring the Minister to pay Ms Sochorova's costs. It published its reasons on 22 November 2002 ([1], [14]).
2 cited instruments linked from this judgment.
The underlying proceeding arose from the Migration Review Tribunal's decision of 21 August 2001 affirming a delegate's refusal of Ms Sochorova's Family (Residence) visa application. The application had been refused on 25 October 1999. The judgment records that Ms Sochorova and her brother had been separated at the end of the Second World War, that their father had been killed in a concentration camp, and that the siblings were reunited after about forty years. Her visa application had asked that these compassionate circumstances be considered ([2]).
Ms Sochorova lodged documents on 14 January 2002 that purported to be a notice of appeal and an extension application. The Court noted that she used forms ordinarily used for appeals from Administrative Appeals Tribunal decisions and did not have legal advice when lodging them ([3]). The Minister then objected to competency, first on the basis that the matter was out of time and later on additional grounds, including that the application was not in the required form and did not state grounds of review open under s 39B of the Judiciary Act, having regard to s 474 of the Migration Act ([4]).
Kiefel J heard submissions on the time issue. Her Honour's orders of 28 June 2002 adjourned the further hearing of the objection to competency and ordered Ms Sochorova to pay the Minister's costs of the hearing to that point ([5]–[6]). The objection had not been finally decided. The Minister's second ground was still to be heard, and the judgment said the possibility of amending Ms Sochorova's application remained a live issue ([7]).
The Minister filed the extension motion on 18 July 2002. The applicable rule required a leave motion in these circumstances to be filed and served within seven days of the interlocutory judgment, unless further time was allowed. The Court stated that the motion was due by 5 July and was filed approximately thirteen days late ([8]–[9]). The Full Court refused to enlarge time for several related reasons.
The first central concern was the absence of an adequate explanation for delay. The Minister's outline of argument said that the delay resulted from time taken to obtain instructions. But the supporting affidavit said only, “I have recently received instructions to file the within Application.” The Court considered that statement did not explain the delay and did not substantiate the assertion that obtaining instructions had taken time ([9]–[10]).
The Court applied the approach it attributed to Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348: court and statutory time limits should prima facie be observed, and an acceptable explanation for delay should first be given. The judgment does not treat the length of delay as decisive by itself. Rather, it identifies the missing explanation as a significant problem in the Minister's application ([10]).
The second concern was that the primary judge was still part heard on the objection to competency. The Full Court said it was generally inappropriate to seek leave to appeal from interlocutory judgments that do not finally resolve all issues in the interlocutory matter. The Minister might succeed on the additional ground that remained for hearing. The underlying proceeding also involved a live question about amendment. These circumstances made a proposed appeal premature in the procedural sense identified by the Court ([7], [10]).
The third concern was the statutory character of the proposed appeal. Section 24 of the Federal Court of Australia Act 1976 (Cth) concerns appeals from judgments of a single judge. Section 4 defines “judgment” to include a judgment, decree or order, whether final or interlocutory, or a sentence. The Full Court said the Minister was seeking leave in respect of findings and reasons, not a judgment or order ([10]). It relied on Driclad Pty Ltd v Commissioner of Taxation (Cth) (1968) 121 CLR 45 at 64, which it followed, and referred to Landsal Pty Ltd v REI Building Society (1993) 41 FCR 421. The key distinction was between an operative judicial act and the reasons explaining it.
The fourth concern was the absence of substantial injustice if the extension were refused. The Court addressed the possibility that the only order capable of appeal might have been wrong, but concluded that no substantial injustice would result. It cited Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136 at [15]–[18] ([11]).
The Minister relied only on the costs order. The Full Court considered that order in context: the Minister's objection to competency had been handled in two stages, with an amended notice filed after oral argument and further written submissions on the original out-of-time ground had concluded. The Court also assessed that the prospects of having the costs order set aside were not strong. It said the primary judge's conclusion about the application of s 379A(1) of the Migration Act, though not necessarily her reasons, was arguably correct on the relevant facts ([12]–[13]). The Full Court therefore refused the extension, with costs ([14]).
This judgment does not purport to reform the law of extensions of time or appellate jurisdiction. It applies existing procedural rules and authorities to the particular application before it. The judgment identifies O 52 r 10(2)(b) of the Federal Court Rules as requiring the motion to be filed and served within seven days, unless the Court allowed further time ([8]).
For extensions of time, the Court adopted the approach cited from Hunter Valley Developments: time limits should prima facie be followed and an acceptable explanation for delay should first be provided. On these facts, a statement that instructions had “recently” been received did not amount to an explanation for the period of delay ([10]). The judgment does not say that every extension application must fail where the explanation is inadequate, nor does it set out a complete checklist for all extension applications. Its conclusion arises from the combined circumstances it identified.
For appealability, the Court applied the statutory terms in ss 4 and 24 of the Federal Court of Australia Act. Its discussion, drawing on Driclad and Landsal, distinguishes an appealable operative judicial act from reasons alone ([10]). This is important to the Court's treatment of the Minister's proposed appeal: an application directed at a judge's findings or reasoning is not interchangeable with an appeal from the order made.
The judgment also emphasises procedural timing in interlocutory matters. It says that leave is generally not apt where the primary judge has not finally resolved all issues raised in the interlocutory matter. It identifies possible fragmentation of proceedings and the prospect that an appeal could become otiose if the final determination were adverse to the proposed appellant ([10]). These observations explain the Full Court's case-specific caution, rather than announce that interlocutory appeals can never proceed before all issues are resolved.
There is no “after” state of law established in the judgment in the sense of a new statutory rule or an overruled precedent. The judgment cites and applies authorities, and refuses relief on the facts before it. The supplied text does not establish whether later legislation changed the cited provisions, or how later courts have developed these principles.
At [10], the Court states: “Prima facie, time limits set down by rules of Court or legislation should be adhered to.” In plain English, a court starts from the position that filing deadlines matter. The applicant seeking more time should give an acceptable explanation for missing the deadline. Here, the affidavit did not explain the delay.
The same paragraph says the affidavit “simply says that instructions have been ‘recently received’.” The point is evidential: the Minister's asserted reason, delay in obtaining instructions, was not established by the affidavit. The Court assessed the material actually filed, rather than treating the outline of argument as a substitute for sworn evidence.
The Full Court quoted Driclad at [10]: “The word ‘judgments’ in this connexion refers only to operative judicial acts, and is not used, as it often is in other contexts, as a convenient abbreviation for reasons for judgment.” Put simply, an appeal is directed to a decision that has legal effect, such as an order, not merely to the judge's explanation of that decision. The Full Court considered the Minister's proposed challenge to be directed to reasons and findings.
At [10], the Court also said that it is generally inappropriate to seek leave to appeal from an interlocutory judgment that does not finally resolve all issues raised in the interlocutory matter. In practical terms, a challenge may be premature while the primary judge is still dealing with the same procedural dispute. The Court identified the unresolved second ground and possible amendment as relevant circumstances ([7], [10]).
At [11], the Court stated that “no substantial injustice will result” from refusing an extension, even supposing the only potentially appealable order were wrong. This was not a determination of the underlying visa or judicial review dispute. It was an assessment of prejudice relevant to whether extra time should be granted. The Minister relied on the costs order, but the Court considered the likelihood of overturning that order weak ([11]–[13]).
Finally, the Court's concern at [10] that an appeal could “fragment the trial process” describes a procedural risk. Its related observation that an appeal could be “otiose” if the final merits determination were adverse to the applicant means that the appeal could prove unnecessary depending on what happened later in the proceeding.
The judgment is most directly relevant to an application for extra time to seek leave to appeal where the governing court rule has a short filing period and the applicant's evidence does not explain why the deadline was missed. The important factual feature here was not just that the filing was late, but that the affidavit did not support the asserted reason for the delay ([8]–[10]).
It may also be relevant where a proposed appeal is directed at a judge's findings or reasons rather than an operative order. The judgment's statutory discussion makes the distinction central to the application before it ([10]). A lawyer considering a comparable matter would need to identify precisely what order is said to be appealable and how the proposed grounds relate to that order. This is a description of the issue raised by the judgment, not a conclusion about any other case.
The decision also addresses circumstances where the primary judge has not completed the interlocutory process. Here, the objection to competency remained part heard, an additional ground had yet to be determined, and possible amendment remained live ([7]). The judgment indicates that those features may weigh against an immediate appeal because of fragmentation or possible redundancy ([10]).
Finally, the case involved an applicant who claimed prejudice only from a costs order. The Full Court examined both how the order came about and the apparent prospects of overturning it ([11]–[13]). The decision therefore illustrates that an assertion of a procedural disadvantage may not, by itself, establish substantial injustice. The court's assessment depends on the particular order, the history of the proceedings, and the material put forward.
The supplied judgment does not discuss later decisions applying, distinguishing, or departing from Minister for Immigration & Multicultural & Indigenous Affairs v Sochorova. No later-court treatment can be established from the text provided, so it would be unsafe to describe this judgment as subsequently followed, limited, or displaced.
What the judgment itself does show is its reliance on earlier authorities. It referred to Hunter Valley Developments Pty Ltd v Cohen for the approach to explaining delay, followed Driclad Pty Ltd v Commissioner of Taxation (Cth) on the meaning of an appealable judgment, referred to Landsal Pty Ltd v REI Building Society, and followed Bailey v Beagle Management Pty Ltd on substantial injustice ([10]–[11]). Those relationships concern the authorities the Full Court used, not later treatment of Sochorova.
For professional use, the distinction matters: the judgment provides a reasoned example of how the Full Court approached an extension application in 2002, but this text alone does not establish its present status or how subsequent courts have applied it. Any account of later treatment would require sources beyond the judgment supplied here.
The Full Court did not finally decide whether the Migration Review Tribunal decision had been “handed down” within the meaning of s 368B of the Migration Act. It identified a lack of evidence that the decision had been handed down in accordance with that provision, or given orally, and said there were “serious reservations” about the Minister's contention that Ms Sochorova's application was out of time. It suggested that the primary judge's conclusion on the first ground might be correct for different reasons ([10]). The Court did not resolve that statutory question in this extension application.
Nor did the Full Court determine the Minister's second ground of objection to competency. That issue remained for the primary judge, who was part heard ([7]). The Full Court did not decide whether Ms Sochorova's application was validly brought, whether it could be amended, or the merits of the underlying judicial review proceeding.
The judgment also did not decide whether the 28 June costs order was correct in every respect. It assessed whether the claimed injustice justified extending time and concluded that prospects of setting the costs order aside were not strong ([11]–[13]). The proposed appeal itself did not proceed, so there was no appellate ruling on the substantive correctness of that costs order.
More broadly, the judgment does not provide a comprehensive statement of every factor governing extensions of time or interlocutory leave applications. It applies the cited principles to this record: a late motion, no adequate explanation, an unfinished interlocutory process, a proposed challenge framed against reasons and findings, and no demonstrated substantial injustice beyond costs ([8]–[14]). Those boundaries should be kept in view when considering how the decision may relate to materially different facts.
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THE COURT 1 On 18 November 2002 the Court ordered that the application for an extension of time within which to seek leave to appeal from the interlocutory orders of Kiefel J of 28 June 2002 be refused, and that the applicant pay the respondent's costs of the application. What follows are the reasons for the making of that order. 2 On 21 August 2001 the Migration Review Tribunal ("the MRT") affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") made on 25 October 1999 to refuse to grant Ms Sochorova a Family (Residence) visa (Class AO) Subclass 806 ("the visa"). Ms Sochorova is not the usual present-day applicant for a visa. Her application for permanent residence, dated 14 July 1999, prepared by her solicitors, MacDonells, contained the following: "In addition to the criteria required to be considered when assessing this application, would you please take into account the following compassionate grounds. The Applicant, Terezie Sochorova and her brother Joseph Moder were separated at the end of the Second World War. Their father was killed in a concentration camp in Europe. The Applicant was cared for by her grandparents and the sponsor, Joseph Moder, immigrated to Australia with his aunty whose surname was Moderovo. She subsequently adopted Joseph in Australia and his name was changed from Josef Zeman to Joseph Moder. … As you will note from the enclosed letter and Red Cross articles, the sponsor and sister were reunited after some forty years separation following the war and following research undertaken by the Australian Red Cross. The Applicant and sponsor were significantly affected by the Second World War and their subsequent separation. It is their strong wish to remain in close contact for the rest of their lives." 3 On 14 January 2002 Ms Sochorova filed what purported to be a notice of appeal from the MRT's decision and an application for an extension of time to file and serve a notice of appeal. The forms used were those which are ordinarily used in the context of "appeals" to the Court from decisions of the Administrative Appeals Tribunal. Ms Sochorova did not have the benefit of legal advice when she lodged those documents with the Queensland District Registry of the Court. 4 On 21 March 2002 the Minister filed a notice of objection to competency. The notice claimed that the Court did not have jurisdiction to deal with Ms Sochorova's application as it was filed out of time. On 15 April 2002 the Minister purported to file an amended notice of objection to competency. The amended notice repeated the objection taken in the original notice and added the following paragraph: "2. the application:
(a) is not in or substantially in the form of Form 5 of the Federal Court Rules 1979 as required by Order 54A rule 2; and
(b) does not state grounds of review open to the applicant pursuant to section 39B of the Judiciary Act 1903, having regard to section 474 of the Migration Act 1958."
5 Earlier, on 13 March 2002, the primary judge heard submissions from the parties on what is now the "out of time" aspect of the Minister's notice of objection to competency. In her Honour's reasons for judgment of 28 June 2002 the primary judge made a finding on that aspect of the objection to competency. The issue in the second paragraph of the amended notice of objection to competency was raised in submissions at that hearing. It was adjourned to a later date to enable Ms Sochorova's pro bono counsel to have an opportunity to address the issues raised by that paragraph. 6 The orders made by her Honour on 28 June 2002 were as follows: "1. Adjourn the further hearing of the respondent's objection to competency to a date to be fixed.
7 At this stage, the primary judge has not finally determined the Minister's notice of objection to competency. Her Honour is part heard in that task. Counsel for the Minister informed the Court that the notice of objection to competency will be further heard next month. The question of amendment to the application in the principal proceedings is, in light of the history of the matter, a live issue. It should not be forgotten that the fundamental task of the Court is to administer justice according to law. 8 By notice of motion dated 18 July 2002, the Minister sought an extension of time to make an application for leave to appeal from the interlocutory judgment of the primary judge. Under O 52 r 10(2)(b) of the rules of Court, a notice of motion seeking leave to appeal in such circumstances is required to be filed and served within seven days of the pronouncement of the interlocutory judgment or "within such further time as the Court of a judge may allow." 9 The relevant notice of motion was required to be served on or before 5 July 2002. It was filed some thirteen days late. The outline of argument filed on behalf of the Minister, before the Full Court, asserts that the notice of motion was filed late "because of a delay in obtaining instructions from the [Minister]". However, the affidavit in support of the application for an extension of time merely provides: "I have recently received instructions to file the within Application." 10 An extension of time for the filing and serving of the notice of motion of the Minister dated 18 July 2002 should not be granted, for the following reasons: · Prima facie, time limits set down by rules of Court or legislation should be adhered to. An acceptable explanation for the delay should first be given by the person seeking an extension of the time for filing relevant documentation: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348, per Wilcox J. No reasonable explanation for the delay has been given in this matter. The affidavit in support of the application does not evidence any explanation for the delay in filing the application for an extension of time; in particular, it provides no basis for the submission that there had been "a delay in obtaining instructions from the Minister". The affidavit simply says that instructions have been "recently received".
· The primary judge is part heard in her consideration of the notice of objection to competency. It is possible that the Minister may succeed on the second ground in his notice of objection to competency. It is generally inappropriate to seek leave to appeal from interlocutory judgments which do not finally resolve all issues raised in an interlocutory matter in a proceeding.
· Leave to appeal is sought, not in respect of a judgment or order of the Court, but in respect of findings and reasons of the primary judge. Section 24 of the Federal Court of Australia Act 1976 (Cth) provides that the appellate jurisdiction of the Court is, inter alia, from "judgments of the Court constituted by a single judge". A "judgment" is defined by s 4 of that Act to mean "a judgment, decree or order, whether final or interlocutory, or a sentence".
In Driclad Pty Ltd v Commissioner of Taxation (Cth) (1968) 121 CLR 45 at 64 it was held:
"…it is of the nature of appeals, as s 73 of the Constitution recognizes, that they lie only against 'judgments, decrees, orders and sentences', not against reasons. The word 'judgments' in this connexion refers only to operative judicial acts, and is not used, as it often is in other contexts, as a convenient abbreviation for reasons for judgment." See also Landsal Pty Ltd v REI Building Society (1993) 41 FCR 421. · In the event that her Honour dismisses par 2 of the notice of objection to competency, it is open to the Minister to seek leave to appeal from her Honour's order in respect of that notice. That course would incur the usual difficulty of being an appeal from an interlocutory order in a proceeding, with the innate tendency to fragment the trial process and, further, would be otiose if the final determination on the merits were to be adverse to the applicant in the principal proceedings.
· There are serious reservations as to the correctness of the Minister's submission that the respondent's application was lodged out of time. Those reservations stem from the lack of evidence that the decision of the MRT, the subject of the application, was "handed down" in accordance with s 368B of the Migration Act 1958 (Cth) ("the Act"), or given orally. It seems arguable that the primary judge's conclusion on ground 1 of the motion is correct, albeit for reasons other than those upon which she relied.
11 In our view no substantial injustice will result if an extension of time is refused, supposing the only order made by the primary judge that is capable of being the subject of an appeal was wrong: see Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136 at pars [15] to [18]. The only injustice relied upon by counsel for the Minister was the costs order made by her Honour. 12 The making of the costs order against the Minister occurred, in part, because the objection to competency was dealt with by his legal representatives in a two-staged process. The purportedly "amended notice", filed without leave, containing the second ground was filed after the completion of oral argument and further written submissions, on what was the only ground raised in the original notice of objection to competency, ie. the "out of time ground". 13 In any event, the prospects of the Minister having the costs order set aside, if an appeal were to proceed, are not strong. This order no doubt reflected her Honour's view "that reliance cannot be placed by the [Minister] on the provisions of s 379A(1)" of the Act. That her Honour's conclusion, though not her reasons for reaching it, is an arguably correct statement of the application of that sub-section in the form presently relevant to the facts of this case suggests that, if an appeal against the costs order were to proceed, the appeal court would be unlikely to set the order aside. The Minister cannot therefore show that he has suffered the limited injustice that he says has resulted from that order. 14 For the above reasons, the application for an extension of time within which to seek leave to appeal was refused, with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Drummond and Marshall.
Counsel for the Applicant: Mr P G Bickford
Solicitor for the Applicant: Blake Dawson Waldron
Date of Hearing: 18 November 2002
Date of Order: 18 November 2002
Date of Judgment: 22 November 2002
Minister for Immigration & Multicultural & Indigenous Affairs
Sochorova
Application for an extension of time within which to seek leave to appeal refused. The Minister was ordered to pay the respondent's costs of the application.