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[2009] FCA 585
Federal Court of Australia
2009-06-02
Lander J, Branson J, Moore J, Besanko J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicant seeks an extension of time within which to file and serve a notice of appeal from an order made by a judge of this Court on 16 April 2009. This Court's power to extend time is contained in O 52 r 15(2) of the Federal Court Rules. For the reasons which follow, I will make the order sought by the applicant. 2 The respondent brought a notice of motion seeking the punishment of the applicant for contempt of court, in disobeying orders of this Court and failing to honour undertakings given to the Court. The notice of motion was heard by a judge of this Court ("the primary judge"), who made a number of orders on 16 April 2009. The application for an extension of time within which to file and serve a notice of appeal relates to the seventh order made on 16 April 2009, which is a declaration in the following terms: "The respondent has been guilty of wilful and contumacious contempt of court on:
(1) 7 December 2007; and (2) 11 December 2007; and (3) 24 April 2008; and (4) 23 May 2008; and (5) 20 June 2008; and (6) 24 June 2008; and (7) 25 June 2008; by publishing on the World Wide Web to the public material:
(a) in disobedience of the September 2002 orders; and (b) in breach of the undertaking given to Justice Moore on 27 November 2007." The September 2002 orders were orders made by Branson J on 17 September 2002 (see Jones v Toben [2002] FCA 1150). 3 On 13 May 2009, the primary judge made orders as to penalty and those orders included an order that the applicant be imprisoned for a period of three months. Orders have been made from time to time that the warrant for the arrest and imprisonment of the applicant lie in the Registry of the Court. On 22 May 2009, the applicant filed and served a notice of appeal against the orders made on 13 May 2009 and, if pursued, that appeal will in due course be heard and determined by the Full Court of this Court. 4 The applicant also wishes to appeal against the primary judge's declaration made on 16 April 2009, but he needs an extension of time to do that because he did not file and serve a notice of appeal within the 21 day period prescribed by O 52 r 15(1) of the Federal Court Rules. The 21 day period expired on 7 May 2009. 5 On 20 May 2009, the applicant issued an application for leave to appeal, supported by his own affidavit and an application for an extension of time to file and serve a notice of appeal. The applicant exhibited to his affidavit a document setting out 25 proposed grounds of appeal. Those documents were served on the respondent on 22 May 2009. 6 The applicant's applications were heard on 28 May 2009. At the outset of his submissions, I asked counsel for the applicant to formulate the orders he was seeking; the applicant is seeking either leave to appeal or an extension of time within which to appeal. 7 The respondent filed an outline of submissions before the hearing and in that outline he submitted that the primary judge's orders made on 16 April 2009 and, indeed those made on 13 May 2009, were interlocutory orders. One submission he made was the primary judge's orders were interlocutory orders because they were made in the main proceeding, being an action brought under the Racial Discrimination Act 1975 (Cth), not in a separate proceeding. It was necessary to adjourn the hearing for a short time at an early stage and, before doing so, I referred counsel to the decision of Lehane J in Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150. When the hearing resumed, counsel for the respondent advised the Court that he no longer contended that the declaration was an interlocutory order and he submitted that it was appropriate for the matter to proceed on the basis that the substance of the application was for an extension of time within which to file and serve a notice of appeal. I think it is appropriate to proceed on that basis. 8 I do not propose to set out any further details of the factual background of this matter. It is fully set out in the primary judge's reasons for finding the applicant guilty of contempt (Jones v Toben [2009] FCA 354) and on penalty (Jones v Toben (No 2) [2009] FCA 477). 9 The factors which are relevant to the discretion to extend time within which to appeal are well known. It is unnecessary for me to discuss the cases in detail. The leading authorities are Jess v Scott (1986) 12 FCR 187; Jeffers v The Queen (1993) 67 ALJR 288; 112 ALR 85; Parker v The Queen [2002] FCAFC 133. 10 The first factor is the length of the delay. The period in this case is in the order of 15 days. That is not a period which suggests that an extension should not be granted. The second factor is the explanation for the delay. The explanation in this case is that the applicant was advised by his legal adviser that it was "more appropriate that an appeal be commenced when sentencing and the making of orders was complete". That explanation is not challenged by the applicant, and it is accepted by him as an adequate explanation for the delay. I am satisfied that there is an adequate explanation for the delay. The third factor is the prejudice to the applicant if an extension of time is not granted. The prejudice in this case is that the applicant will be unable to challenge the finding of contempt which ultimately led to a penalty of a period of imprisonment of three months. The fourth factor is the prejudice to the respondent if an extension of time is granted. Counsel for the respondent frankly acknowledged that he could not point to any prejudice if an extension of time is granted. 11 The fifth factor which may be considered is the strength of the proposed appeal. If a proposed appellant is unable to demonstrate any prospect of success in the appeal then that will be a reason to refuse an extension of time: Jeffers v The Queen (1993) 67 ALJR 288; 112 ALR 85 at 289; 86 per Deane, Dawson and Toohey JJ. In this case, the respondent submits that the proposed appeal has no prospects of success and that, despite the other circumstances suggesting an extension of time should be granted, this factor is of sufficient weight to justify a refusal of the application for an extension of time. The precise formulation of this factor and its application sometimes proves difficult. If it is clear that the proposed appeal has no prospects of success then, no doubt, an application for an extension of time will be refused. However, care must be exercised and that conclusion should not be reached too readily because, as in the situation before me, the Court has not had the benefit of the full submissions which would be made on the appeal. A conclusion which goes no further than that the grounds of appeal appear weak or unlikely to succeed will not ordinarily lead to a refusal to extend the time within which to appeal where the other factors suggest an extension of time should be granted. 12 I have read the primary judge's reasons for finding the applicant guilty of contempt, the proposed grounds of appeal and the outline of submissions filed by the respondent. In the outline, the respondent advances submissions as to why he contends each ground of appeal is doomed to fail. I have also had the benefit of oral submissions from both parties. I do not propose to traverse each ground of appeal and the respondent's submissions in relation to each ground. Certainly, I am satisfied that the proposed grounds of appeal appear weak and indeed some of the grounds appear to be without merit. However, I cannot reach the conclusion that the proposed appeal has no prospect of success without hearing a good deal more from the parties, and any further hearing would approximate the hearing of the appeal itself. It is not appropriate that I undertake such an exercise. 13 In my opinion, an extension of time should be granted and the order of the Court is as follows: The time within which the applicant may file and serve a notice of appeal appealing against the declarations made by Lander J on 16 April 2009 (order number 7) and containing the 25 grounds of appeal identified in exhibit "GFT-B" to the applicant's affidavit sworn on 20 May 2009 be extended to 9 June 2009. 14 I will hear the parties as to costs and any other orders. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.
Associate: Dated: 2 June 2009 Counsel for the Applicant: Mr D Perkins
Counsel for the Respondent: Mr R Margo SC with Ms R Graycar
Solicitor for the Respondent: Slater & Gordon Lawyers
Töben
Jones
(1993) 67 ALJR 288
(1986) 12 FCR 187
(1998) 82 FCR 150