CONSIDERATION
20 In this case, the applicant is only one day out of time in lodging his appeal. In his affidavit in support of this application he explains this delay as arising from a combination of his poor understanding of English, his lack of legal representation and his erroneous belief he had 28 days to appeal, instead of 21 days. In Jess v Scott (1986) 12 FCR 187 ('Jess') at 195 the Full Court of this Court held that: the expression 'special reasons' "is intended to distinguish the case from the usual course; and "take the case out of the ordinary": see also WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 ('WAAD')at [8]. In my opinion, the combination of circumstances deposed to by the applicant (above) sets this matter apart from the usual course, or takes it out of the ordinary, such that there are 'special reasons' for the purposes of O 52 r 15(2).
21 However, there are a number of decisions of this Court, including the Full Court, that require me to consider the applicant's prospects of successfully prosecuting his appeal, before exercising my discretion to grant leave to file the appeal out of time: see Brehoi v Minister for Immigration & Multicultural Affairs [1999] FCA 772at [12] per Whitlam, Moore and Katz JJ; Tydeman v Deputy Registrar of Child Support Agency [1999] FCA 936 at [5]per Sackville J; Atkinson v Commissioner of Taxation [2000] FCAFC 1621 at [12] per Hill J and at [14] per Dowsett J, and see Sackville J in the first instance [2000] FCA 998 at [3]; Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 at [12] per Mansfield J; Howard v Australian Electoral Commission [2000] FCA 1767 at [7] per Branson J; W105/99A v Minister for Immigration and Multicultural Affairs [2001] FCA 1786 at [13] per RD Nicholson J;and WACF v Minister for Immigration Multicultural and Indigenous Affairs [2003] FCA 1385 at [30] per Carr J and WAAD (above) at [9].
22 The questions which then arise are: how rigorous should that assessment be; what standard should apply to it; and how closely should the applicant's prospects of success be examined? The appropriate standard has been expressed in different ways and in different circumstances. In Jess the Full Court does not seem to have mentioned any requirement to assess the applicant's prospects of success in the appeal. This is probably explained by the view the Court expressed early in its reasons that: "there is no suggestion that the appeal is sought to be maintained mala fide or upon slight or foolish grounds" (at page 3). However, their Honours did emphasise the need for flexibility to accommodate the range of situations that may arise when they said:
… the 'special reasons' relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late.
23 While in WAAD the Full Court (differently constituted) stated at [9] that: "an extension of time in which to file an appeal will not be granted without a consideration of the putative appellant's prospects of successfully prosecuting his appeal", the Court did not provide any clear statement as to the standard to be applied to that consideration. However, two paragraphs earlier at [7] the Court did observe: "The discretion to extend leave is given with the purpose of enabling the Court to do justice between the parties … So, for example, where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted." Furthermore, when the Court came to describe the applicant's prospects of success in that case, it said they were of "sufficient strength" to justify leave being granted.
24 In Jess the Full Court referred twice to the Victorian Full Court decision of Hughes v National Trustee Executors and Agency Co of Australasia Ltd [1978] VR 257 at 262 and 264. In Hughes the Full Court observed (at 264) that the consideration of the applicant's prospects of success in the appeal was required in balancing the injustice caused to each party by granting or refusing the leave application. The Full Court seemed to put the standard quite high for the respondent opposing the application for leave and, conversely, quite low for the applicant, by stating that: "[f]or it would be unjust to the respondent to put him to the trouble and expense of an appeal if the judgment sought to be attached [sic] is plainly right …".
25 I interpolate that the competing injustice or prejudice caused to the parties has been stated as an important consideration in a number of decisions including: WAAD (see [23] above), SZKJV v Minister for Immigration and Citizenship [2008] FCA 831 ('SZKJV') at [12] per Jacobson J and Jackamarra v Krakouer (1998) 195 CLR 516 ('Jackamarra') at [66.4] per Kirby J. Further, another aspect that has some bearing on the issue is whether the respondent's substantive rights are put at risk by the grant of leave: see Jackamarra at [7] per Brennan CJ and McHugh J.
26 In WACF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1385, Justice Carr observed that:
I have previously, in cases where an applicant has only been a few days out of time and had not received a copy of the reasons in good time, declined to require him to show a reasonable prospect of success or a good arguable case before being granted an extension of time in which to lodge a notice of appeal - see WABD v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 299 and WABX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 300. I did so in reliance upon the observations of Ackner LJ (with Robert Goff LJ and Browne-Wilkinson LJ concurring) in Palata Investments Ltd v Burt & Sinfield Ltd [1985] 2 All ER 517 at 521, a case cited with approval by the Full Court in Jess v Scott at 192.
27 In the decision of Palata Investments Ltd v Burt & Sinfield Ltd [1985] 2 All ER 517 at 521, referred to by Justice Carr (above), the English Court of Appeal observed on this issue:
"…having drawn attention to the procedure which used to exist, we expressed the opinion that, in cases where the delay was very short and there was an acceptable excuse for the delay, as a general rule the appellant should not be deprived of his right of appeal and so no question of the merits of the appeal will arise. We wish to emphasise that the discretion which fell to be exercised is unfettered, and should be exercised flexibly with regard to the facts of the particular case. No doubt in some cases it may be material to have regard to the merits of the appeal, because it may be wrong, and indeed may be an unkindness to the appellant himself, to extend this time for appealing after he has allowed the time to elapse, to enable him to pursue a hopeless appeal.
28 In the recent decision of SZKJV (above) Justice Jacobson said (at [16]) that:
A critical factor in the exercise of the discretion is a consideration of the merits of the substantive application. This informs the exercise of the discretion and the nature of what amount to "special reasons" in any particular case. In considering the merits of the appeal, an applicant will not ordinarily have to demonstrate that there are reasonable prospects of success. The authorities to which Mr Bozic referred in his written submissions are to the effect that the Court will generally only exercise its discretion against granting leave if the appeal is so devoid of merit that it would be futile to extend time. This was said by Brennan CJ and McHugh J in Jackamarra v Krakouer (1998) 195 CLR 516 at [7].
29 Earlier in the decision of Chief Justice Brennan and Justice McHugh in Jackamarra (at [3]) their Honours referred to Lord Denning MR's decision in R v Secretary of State for the Home Department: ex parte MEHTA (1975) 2 ALL ER 1084 at 1088 where he contrasted cases that were "strong on the merits and which ought to be heard" with those that were "a flimsy case and weak on the merits". In the joint dissenting judgment of Justices Gummow and Hayne in Jackamarra (at [34]) their Honours said, after referring to the tests for summary dismissal listed by Chief Justice Barwick in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 including: "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument", their Honours said:
We do not think it useful to fasten upon one verbal formula in preference to all others as a description of the necessary degree of satisfaction. What must be shown is that it is clear that the appeal will fail and in that sense is not "arguable" or not "fairly arguable".
In his judgment in Jackamarra Justice Kirby said at [66.4]:
A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused.
30 Taking all these decisions into account, particularly the High Court Decision of Jackamarra, I consider the standard that should be applied in an application of this kind to the assessment of the applicant's prospects of success in the appeal, is similar to that to be applied in an application for summary dismissal. That is, unless the appeal is shown to have no reasonable prospects in the sense that it is devoid of merits or will clearly fail, or is hopeless or unarguable, leave should be granted.
31 There remains the question: how closely should the applicant's prospects of success on the appeal be examined? The answer to that question was provided in Jackamarra. There the High Court said the consideration of an application of this kind should not go into much detail on the merits and can only assess the merits in a fairly rough and ready way: see [9] per Brennan CJ and McHugh J and [66.4] per Kirby J.
32 As I have already pointed out, in this case, the applicant is only one day out of time in lodging his appeal. No question of prejudice has been raised by the first respondent and this is not a situation where the first respondent's substantive rights will be affected by the grant of leave. On the other hand, the applicant's prejudice is obvious and potentially very significant if he loses a right of appeal that may eventually lead to him establishing an entitlement to a protection visa in this country. I have already found that the applicant has demonstrated circumstances that amount to 'special reasons' for the purposes of O 52 r 15(2). From my review of the Tribunal's decision and the Federal Magistrate's treatment of it, based on a rough and ready assessment, I have concluded that the applicant's prospects in this appeal are not such that it will clearly fail, or is devoid of merit, or is hopeless or unarguable, with respect to at least some of the matters raised in the applicant's outline of submissions (see [17] above). I do not consider it appropriate, at this stage of the proceedings to describe the applicant's prospects other than in these very general terms.
33 For these reasons, I propose to grant leave to the applicant to file his notice of appeal out of time.
I certify that the preceding thirty three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.