S256 of 2004 v Minister for Immigration & Multicultural& Indigenous Affairs [2005] FCA 47 (1 February 2005)

Last Updated: 3 February 2005

FEDERAL COURT OF AUSTRALIA

S256 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 47

S256 OF 2004 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS


NSD 1848 of 2004





BRANSON J
1 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1848 of 2004

BETWEEN:	S256 OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	1 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The application for an extension of time to file and serve a Notice of Appeal be refused.
2.	The applicant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1848 of 2004

BETWEEN:	S256 OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	1 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for an extension of time to appeal from a judgment delivered by Moore J on 10 November 2004. By that judgment his Honour dismissed an application for constitutional writs. The proceeding before his Honour had been commenced in the High Court of Australia and remitted to this Court by an order of the High Court.

2 Order 52 of the Federal Court Rules requires that, unless an extension of time is granted, a notice of appeal must be filed and served within twenty-one days after the date when the judgment appealed from was pronounced. On 10 December 2004 the applicant filed this application for an extension of time. The affidavit of the applicant filed in support of the application states that he is not satisfied with the judgment. It does not comply with O 52 r 15(6) which requires such an affidavit to show:

‘(a) the nature of the case;

(b) the questions involved; and
(c) the reason why leave should be given.’

3 The Court’s file suggests that the applicant did not attach to his application or his supporting affidavit a draft notice of appeal. However, counsel for the respondent provided to the Court a copy of a draft notice of appeal apparently served on his client. The draft notice of appeal appears to be a collage of grounds of appeal taken from notices of appeal filed in other proceedings. It makes no reference to the only basis upon which Moore J dismissed the applicant’s application for constitutional writs, namely that it was a plain case for the application of Anshun estoppel. His Honour noted that the applicant had earlier been involved in litigation in this Court, the Federal Magistrates Court and the High Court concerning the decision of the Refugee Review Tribunal in respect of which he sought the issue of constitutional writs.

4 The applicant has today indicated that he requires time to take legal advice but he has given no sensible explanation for his failure to seek legal advice promptly after the pronouncement of the judgment of Moore J. His assertion that he believed that he was entitled to await receipt of the respondent’s written submissions on his application for an extension of time before he sought legal advice is difficult to believe. The applicant now has a deal of litigation experience in this country. He has acknowledged that he knew that there was a time limit for the institution of the appeal that he wishes to prosecute. I do not consider it appropriate to adjourn the hearing of this application to allow the applicant to take legal advice.

5 The applicant has told me today that he did not institute an appeal within the prescribed period because a friend of his, who is a student of law, is helping him and ‘was a bit late to come’. I am not satisfied that this constitutes a satisfactory explanation for the applicant’s delay in seeking to institute an appeal from the judgment of Moore J. In any event, I am not satisfied that an appeal from the decision of Moore J, if instituted, would have any reasonable prospect of success.

6 The application for an extension of time is refused. The applicant is to pay the respondent’s costs of the application.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated: 3 February 2005

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	P Reynolds
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	1 February 2005
Date of Judgment:	1 February 2005