The application for an extension of time
8 Order 52 r 15(2) of the Federal Court Rules states:
Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal. (Emphasis added)
9 The phrase 'special reasons' was considered by the Full Court in Jess v Scott (1986) 12 FCR 187. The Court held (at 195) that:
What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.
…
It should not be overlooked that r 15(2) enables leave to be given "at any time"; 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. "Special reasons" must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.
10 Adopting this approach in the present case, two matters need to be considered in determining whether there are special circumstances. The first is the explanation for the delay (which was not great) and the second is the applicant's prospects in any appeal if time is extended.
11 The applicant explained, from the bar table, why the appeals were not brought in time. I indicated I would accept the applicant's account of events after the Federal Magistrate gave judgment unless the account was put in issue. It was not. The gist of the account (though it was somewhat confused) was that when the judgments were given, the applicant became extremely upset and emotional and nearly lost consciousness. He was not then told he could appeal and was made aware, but only in general terms, that he could appeal when he spoke to Registry staff sometime later that day. He was still extremely upset. He was under the impression that he had 60 days to appeal. On 25 March 2004 he asked his son to ring the Federal Court to find out whether the 60 days commenced from the date of the hearing (10 February 2004) or commenced from the date judgment was given (19 February 2004). When his son was told the applicant had 21 days in which to appeal, the applicant immediately set about obtaining and lodging documents to bring the appeals. He remained very upset about what had happened. I should add that it was apparent at the hearing before me that the applicant remained extremely troubled and upset.
12 In the circumstances I have just described, the delay in bringing the appeals is not a factor weighing heavily against extending time. A more important factor is whether the applicant has any prospects of succeeding in the appeals if time were extended. As noted earlier, the applicant was unsuccessful in two applications because the Federal Magistrate did not believe his account of events and did believe the account of the complainant. The applicant did not point to anything concerning the way the Federal Magistrate assessed the evidence that suggested his Honour erred. Nor is it apparent to me on a reading of his Honour's reasons for judgment in each matter that there is any error likely to result in his judgments being set aside.
13 It is, however, necessary to refer to one matter of detail. The findings of the Federal Magistrate included a finding that acts of sexual harassment occurred at the workplace of the applicant and complainant in April 2001 and following weeks. The applicant's evidence before the Federal Magistrate, at least in his evidence in chief (in an affidavit), was that he went on long service leave on 26 March 2001 and did not return from that leave until June 2001. The complainant's evidence in chief (in an affidavit) was that while she started work in late February 2001, she did not meet the applicant until March 2001 because he had been absent on long service leave. The applicant repeated the claim before me that he had been on long service leave for that period (March to June 2001). In support of this account, he handed up (which I marked as an exhibit in the applications) a document that, on its face, is a business record of his former employer. It is an extract from a document titled "Payroll Journal". There is a journal entry, by way of debit, for 21 March 2001 for the sum of approximately three and a half thousand dollars referable to long service leave.
14 What this document demonstrates is far from clear. However, more importantly, it is a document that the applicant conceded he had in his possession at the time the applications were heard by the Federal Magistrate. He could have sought to tender it at the hearing. Applying settled principles, there is almost certainly no prospect that the applicant would be able to tender the document in any appeal if time were extended. The applicable principles were recently discussed by a Full Court in NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24. The Court said (at [42]):
In order for an appellate court to receive further evidence, two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, 'probability', and at the highest, 'certainty', of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 ('of such importance as very probably to influence the decision' and 'of such weight as, if believed, would probably have an important influence on the result'); Orr v Holmes at 636 ('high degree of probability that the admission of the new evidence would result in a different verdict'); Florance v Andrew (1985) 58 ALR 377 at 381 ('such a different complexion on the case that a reversal of the former result ought certainly to ensue'); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) 'almost certain that, … , an opposite result would have been reached by the primary judge').
In my opinion, it is almost certain the applicant would satisfy neither condition in relation to the extract from the "Payroll Journal" if he sought to tender it in any appeal. It would not be admitted into evidence in any appeal. Accordingly, if time were extended, any appeal would be determined by reference to the evidence led before the Federal Magistrate. For reasons already given, I do not consider that the applicant would be able to demonstrate appealable error resulting either in findings of fact being made differently to those made by the Federal Magistrate or an order for a retrial. In my opinion, if time were extended, the applicant would have no prospects of succeeding in his appeals.
15 The applicant has not demonstrated special reasons warranting an extension of time. The applications are dismissed and the applicant is ordered to pay the complainant's costs of the applications.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.