WABX v Minister for Immigration & Multicultural and Indigenous Affairs

introduction 1 This is an application for an extension of time in which to file and serve a notice of appeal from a judgment of French J given on 18 January 2002. On that date his Honour dismissed the applicant's application for an order of review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the respondent to refuse the grant of a protection visa to the applicant.

factual and procedural background 2 On 18 January 2002 his Honour heard and dismissed the application. The report of listing on the court file indicates that orders were made as follows: "1. Application will be dismissed. 2. The Applicant to pay the respondent's costs of the application." 3 In an affidavit filed in support of his application, the applicant says that he did not know that he had been "rejected" and was waiting for papers from the Court. It would appear that his Honour's reasons were published on or about 29 January 2002. 4 From the applicant's affidavit it would appear that he received a copy of the reasons for judgment, under cover of a letter dated 30 January 2002, a few days after that date. He swears that he completed "the application form" on 8 February 2002. It is apparent that this form was a notice of appeal. On 11 February 2002 the applicant caused a notice of appeal to be faxed to the Court. 5 The applicant's alleged confusion about what took place on 18 January 2002 is understandable, particularly bearing in mind the notation on the report of listing. However, it is clear from the papers before me that judgment was in fact given on 18 January 2002. 6 In those circumstances any notice of appeal had to be filed on or before 8 February 2002. The applicant was thus 3 days out of time in lodging his notice of appeal. In his affidavit he explains that the respondent's Department at Curtin Detention Centre was closed for 2 days before his notice of appeal was faxed. It seems reasonable to infer, and I do so infer, that the applicant placed the notice of appeal and an application for fee exemption with the Department of Immigration Office at Curtin Detention Centre on or about Friday 8 February 2002, but that the office was closed (and the fax thus not transmitted) until the following Monday, 11 February 2002. 7 My jurisdiction to hear this application is conferred by s 25(2)(b) of the Federal Court of Australia Act 1976 (Cth). The applicable rule is Order 52 rule 15(2) which relevantly provides that a judge may, for special reasons, give leave to file and serve a notice of appeal, notwithstanding an applicant's failure to file and serve a notice of appeal within the times referred to in Order 52 rule 15(1). 8 It is customary to resort to the most useful decision of a Full Court of this Court in Jess v Scott (1986) 12 FCR 187 when deciding applications such as these. But, as the Full Court in that case was at pains to point out (at 196) a discretion to relax the requirements of general rules should not itself become entangled in a web of rules spun out of the Court's discretionary decisions. Their Honours added: "Decisions are not authorities upon the facts but upon principles; the facts must be regarded as unique to the particular case." 9 In this matter I give very great weight to the fact that, in practical terms, (when one bears in mind the weekend 9/10 February 2002) the applicant was only one day out of time in lodging his notice of appeal. No possible prejudice to the respondent has been demonstrated by the delay in lodging the notice of appeal. On the other hand, there is at least the potential of a great injustice to the applicant if there is any merit in his proposed appeal. 10 In those circumstances, I consider that special reasons have been shown for granting to the applicant an extension of time in which to file and serve a notice of appeal. The only contrary argument advanced by the respondent was that the appeal has no real prospect of success. 11 This application was heard immediately after a similar application in WABD v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 299 in which I delivered ex tempore reasons for extending the time for filing notice of appeal. 12 Mr A C Willinge, counsel for the respondent in both matters, sought to distinguish this matter from that matter. First, he submitted that the merits of the proposed appeal were critical. He contended that because there were no real prospects of success in this matter, there would be no real injustice to the applicant if leave were refused. 13 Mr Willinge submitted that in matters such as this the merits were not an irrelevant factor. He relied on the decision in Jess v Scott itself and the decision of the High Court of Australia in Jackamarra v Krakouer (1998) 195 CLR 516 for that proposition. 14 I did not suggest in my reasons in WABD that the merits of that proposed appeal were an irrelevant factor, and I do not make that suggestion in this case. I see no relevant differences in relation to the delay on the applicant's part between either of these two matters which were heard consecutively. In the particular circumstances of each case I consider that the Court is not obliged to ascertain whether there was a good arguable case on the appeal. The circumstances of a very short delay, coupled with the fact that the reasons for judgment were forwarded a couple of weeks after the judgment was delivered, did not in my view oblige the Court to turn the application for an extension of time into a motion for summary dismissal of what would have been an appeal if the Notice of Appeal in each case had been filed so few days later, there being no demonstrated prejudice to the respondent. In my view, this approach is consistent with the approach taken by the High Court in Jackamarra. 15 Notwithstanding the Full Court caveat (in Jess v Scott) to which I have referred above, I derive some comfort in the exercise of my discretion from the observations of Ackner LJ in Palata Investments Ltd v Burt & Sinfield Ltd [1985] 2 All ER 517. That was a case in which an appeal had been lodged three days out of time because the appellant's legal advisers had overlooked an alteration of the time permitted for the appeal. After referring to that circumstance, Ackner LJ (with the concurrence of Robert Goff LJ and Brown-Wilkinson LJ) said this (at 21): "There is no question of any prejudice arising to the plaintiffs in the circumstances which I have described, and in that situation there was in my judgment absolutely no need to go into the complex and time consuming question whether or not there was a good arguable case on the appeal. There is no invariable rule which requires that consideration and it would obviously involve the very reverse to what the new procedure is designed to achieve if on every application to extend time for leave to appeal there was a pre-appeal hearing in order to consider what were the prospects of success." 16 That passage (apart from the last sentence) was part of a passage set out by the Full Court in Jess v Scott and later referred to (at 195) with approval when the Full Court indicated that Order 52 rule 15(2) was not to be construed as if the discretion of this Court to waive the rules was itself fettered by further rules. 17 In the circumstances of this particular case (as in the case of WABD), I do not think that the applicant should be obliged to show a reasonable prospect of success or a good arguable case before being granted an extension of time in which to lodge his notice of appeal. 18 In any event, if I am wrong in that view, I have examined the reasons of the Refugee Review Tribunal and those of the learned primary judge. I accept that, on a quick examination of both those reasons, the applicant's case does not appear to be a strong one. I attach some weight to that factor in the exercise of my discretion. Nevertheless, I do not think that that factor outweighs what I consider would be an injustice to the applicant if he were not allowed an extension of time in which to lodge his notice of appeal. Apparently hopeless cases quite often turn out, on more careful scrutiny, to have merit. 19 I will order that time be extended for the filing of the notice of appeal to today's date and that the notice of appeal faxed to the Court on 11 February 2002 be treated as duly filed in Court today. Costs of the application should be costs in the appeal. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.