Pitman v Adminstrative Appeals Tribunal

REASONS FOR JUDGMENT 1. This is an application for leave to appeal from a decision of Emmett J given on 30 August 2005. On that date his Honour dismissed a notice of motion filed by the applicant on 21 June 2005. The notice of motion sought an order setting aside orders made by Emmett J on 1 June 2005 dismissing the proceedings and ordering the applicant to pay the respondent's costs. 2. The application for leave to appeal was filed on 30 September 2005. Leave to appeal is required because his Honour's judgment and orders of 30 August 2005 were interlocutory. 3. The notice of motion for leave to appeal was filed approximately three weeks after the date provided for in order 52, rule 10(2)(b) of the Federal Court Rules. Order 52, rule 10(2A) permits the court to grant an extension of time to file an application for leave to appeal. The authorities establish that the court has a discretion, and the likelihood of leave to appeal being granted is a relevant consideration. 4. I will proceed upon the basis that Mr Pitman is seeking an extension of time and the question which I therefore have to consider is whether the applicant has any likelihood of success in obtaining leave to appeal. Evidence of reasons for the delay are to be taken into account, see Deighton v Telstra Corporation (Unreported, Full Court of the Federal Court of Australia, 17 October 1997, Lee, Heerey and Nicholson JJ); see also Croker v Phillips Electronics Australia Limited [2000] FCA 1731. 5. An affidavit seeking to explain the delay was filed by the applicant. The reasons for the delay seem to be that the applicant has only recently discovered evidence to substantiate his claim that he was denied procedural fairness in the Administrative Appeals Tribunal ("AAT") by reason of the late service of documents.

Discussion 17. The principles upon which leave to appeal is granted are well known. It is incumbent upon an applicant to demonstrate that the decision from which leave is sought is attended by sufficient doubt to warrant it being reconsidered by a Full Court. There is also a question of whether, consistently with what was said by a Full Court in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, substantial injustice would result from the refusal of leave. 18. It seems to me that what has been put to me does not advance the position over and above what was said to Emmett J on 30 August 2005. The difficulty which the applicant faces is that his Honour found the applicant was unable to indicate anything that would demonstrate why the exercise of discretion by the AAT should be different. Similarly his Honour found that there was no evidence before him to indicate that a challenge to the AAT's decision may be sustainable. 19. I can find no error in the view reached by his Honour, nor has anything been put to me today to indicate that his Honour's view was wrong. There can be no injustice in refusing leave to appeal because his Honour's judgment was not attended by any doubt and his Honour found that there was no substance in the applicant's complaints about the AATs decision. 20. Since I am of the view that an application for leave to appeal would be unsuccessful there is no purpose served by extending time to make the application. 21. Accordingly the orders I will make are that the application for an extension of time to bring an application for leave to appeal is refused with costs.

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