Submissions
23 Federal Court of Australia Practice Note APP 2 paragraph 5.2 provides guidance to parties in respect of outlines of submissions filed in appellate proceedings. Relevantly submissions must:
(a) contain a concise statement of the issues on appeal; and
(b) contain an outline of the argument to be presented on each issue, specifying the steps in the argument, and any legislation, authorities or findings of fact to be relied upon in support of each step.
24 The submissions filed by Ms Winn on 6 June 2016 were scant, being 12 paragraphs in length. It is revealing to set them out in full:
1. The Applicant seeks an extension of time pursuant to R 35.14 of the Federal Court Rules 2011 to make an application under Rule 35.11 for leave to appeal from orders of the Federal Circuit Court made on 20 August 2015 in proceeding BRG 1127 of 2012.
2. The application is supported by an affidavit of the Applicant sworn on 29 April 2016.
3. An application for leave to appeal is required within fourteen days of the date of order, under Rule 35.13 Federal Court Rules 2011.
4. On 10 September 2015 the Applicant filed a Notice of Appeal from the orders of 20 August 2015, in the belief that that was the correct process, within the required twenty-one days for filing an appeal. To that extent, the Applicant has complied and not delayed.
5. The Applicant had a bereavement (Affidavit 29 April 2016 Annexure JW-4) and compromised health (Annexures JW-5 and JW-6) from April 2015 until mid December 2015, and for that reason, the Applicant obtained legal representation for the appeal, to relieve her in a difficult situation where she was aware that she could not properly attend to the appeal herself.
6. She was legally represented until February 2016, and relied upon the solicitor who had carriage of her matter. The solicitor did not advise the Applicant whether or not leave to appeal was required. He apparently did not consider it. The Applicant ought not to be prejudiced as a result of, in this case, the absence of awareness of the solicitor acting as to the correct process: Jackamarra v Krakouer (1998) 915CLR [sic] 516 at 543.
7. When the Applicant became aware that leave may be required, she immediately took steps to obtain that leave.
8. The orders made on 20 August 2015 were not provided on that date, although the judgment was handed to parties on that date. Later that evening at 6.10pm Rodger Barnes Green emailed the draft orders to Judge Coates's chambers (Affidavit paragraph 5).
9. The orders were posted to me after 20 August 2015, in the ordinary course of mail delivery, if the order was sent on 21 August 2015, I would have received it one to three days later.
10. Therefore, the time to be accounted for, between the filing of the Notice of Appeal and receiving the orders, is just a few days.
11. It is submitted that:
a. the Applicant filed a Notice of Appeal in time;
b. immediately took steps to file an application for leave once alerted to that;
c. will be significantly prejudiced if she is not able to proceed with the application for leave to appeal;
d. the Respondent has not suffered prejudice by reason of the delay.
12. In the circumstances, the Applicant seeks an order that extension of time be granted.
25 As a matter of law, in exercising the discretion to grant or refuse an extension of time guidelines for the Court to consider include:
whether the applicant has provided an acceptable explanation for the delay in lodging the application;
whether the respondent would suffer prejudice in light of the delay should an extension of time to lodge the application be granted; and
the merits of the substantial application.
(Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9; AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [10]).
26 Further, in considering whether to grant leave to appeal from an interlocutory judgment it is well-settled that the Court should have regard to two questions, namely:
whether, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered; and
whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
(Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400; Ashby v Slipper [2016] FCAFC 63 at [41]).
27 Brevity in a litigant's submissions does not necessarily equate with failure to produce submissions. In this case, however, at best, Ms Winn asserts in her filed submissions that she did not file an application for leave to appeal in time because her lawyer did not advise her to do so, and because she had health problems. Such explanation is both relevant and understandable (although perhaps less so when considered in light of Ms Winn's own legal qualifications). However these submissions on Ms Winn's part do not in any way address the merits of the FCCA Decision the subject of these appellate proceedings, or the question of how that decision could be said to be attended by any (much less, sufficient) doubt to warrant reconsideration. In my view absence of such submissions is particularly problematic in a number of respects:
In relation to an extension of time application - it may be relatively simple for an applicant to assert a viable reason for delay in filing, and indeed the Court may be prepared to take a sympathetic approach to such an explanation. It is however incumbent on an applicant to make submissions in respect of the merits of the case so as to, in essence, demonstrate to the Court a sound reason to waive prescribed time limits and grant the indulgence sought by the applicant.
Similar, although not identical, considerations apply in relation to Ms Winn's application for leave, in that meaningful submissions would include contentions relating to the merits of the decision of the Federal Circuit Court, such as to persuade this Court that the proposed appeal has merit.
It follows that the merits of the proposed substantive appeal, and contended flaws in the first instance decision supporting review of that decision, are key issues in the proceeding currently before the Court. Submissions filed purportedly in support of an application for extension of time and leave to appeal which do not address these issues cannot be said to be in compliance with a direction for the provision of such submissions.
28 In summary, Ms Winn has filed both a notice of appeal, and an application for extension of time and leave to appeal annexing draft grounds of appeal. Even assuming that Ms Winn proposed to rely only on the grounds in the draft notice of appeal, she has placed material before the Court in the form of those grounds and in respect of which, in proper compliance with order 3 of the directions of 3 June 2016, she was required to make submissions. She did not.