Minister for Immigration & Multicultural & Indigenous Affairs v Sochorova

Federal Court of Australia (Full Court)|2002-11-22|Before: Kiefel J, Marshall JJ

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.

The respondent pay the applicant's costs of the hearing on the objection to date."

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

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (5)

Cited By (3)