Keller v Commonwealth of Australia [2002] FCA 120 (14 February 2002)

Last Updated: 28 February 2002

FEDERAL COURT OF AUSTRALIA

Keller v Commonwealth of Australia [2002] FCA 120

NATURAL JUSTICE - appeal from Federal Magistrates' Court - decision attended by sufficient doubt - injustice - extension of time

Decor Corporation Pty Ltd & Another v Dart Industries Inc (1991) 33 FCR 397 applied

LECH JANUSZ KELLER v COMMONWEALTH OF AUSTRALIA

V 1050 OF 2001

TAMBERLIN J

MELBOURNE

14 FEBRUARY 2002

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1050 OF 2001

BETWEEN:	LECH JANUSZ KELLER APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	14 FEBRUARY 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1050 OF 2001

BETWEEN:	LECH JANUSZ KELLER APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	14 FEBRUARY 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 In this matter there is an application for an extension of time in which to file and serve a Notice of Appeal from a judgment of Phipps FM given on 5 September 2001. In that matter, the Magistrate refused to grant an application for an extension of time within which to lodge an appeal to the Federal Magistrates Court. The applicant in these proceedings, Mr Keller, was not present at that hearing and says that he has been denied natural justice as a consequence. There are two grounds on which he seeks to make his present application.

2 The application before this Court arises because he had not filed an application to appeal from the decision of Phipps FM within the prescribed period. He gave two grounds in his notice of application and these were that he was not informed of the hearing on 5 September 2001 and that he only received a copy of the Order in the last week of September 2001. With regard to the first matter relating to the hearing on 5 September 2001 and not having notice, I am satisfied from the record which is before me that in fact he was orally informed as to the hearing taking place on 5 September in the course of the hearing which extended for some time on 30 July 2001.

3 Mr Keller says that he did not make any written note of the date and that he was under some stress and concern at the time. He says that the Court should not act on technicalities in relation to these matters. Nevertheless, the first ground which he raises has not been made out in the sense that he was aware of the hearing and did not appear. In relation to the second matter namely, the receipt of the Order, I am satisfied from an affidavit which has been presented to me dated 18 September 2001, that the applicant was aware of the Order by that date of the decision of the Magistrate of 5 September 2001. The requirement was that he should make an application for leave to appeal within 21 days of the Magistrate's decision. At 18 September 2001, he still had a period within which to lodge an application and it is not explained why he did not make his application within the period available to him.

4 However, more significantly than the above considerations which are to the effect that he has not made out either of the two grounds on which he relies, is the question as to whether the decision of the learned Magistrate was attended by sufficient doubt. That is a matter that I must take into account in deciding whether to grant the application for an extension of time to appeal from the decision of the Magistrate. In the course of the decision, the Magistrate reviewed the evidence which was before the Court and cited the relevant history in relation to the matter. The Magistrate also considered the applicable authorities concerning the matter and came to the conclusion that he was not satisfied, having regard particularly to the affidavits of Ms Wong and another officer from the Department of Foreign Affairs, that the necessary nexus between the allegations of discrimination and the conduct relating to the consideration of the application of Mr Keller was made out, and considered that there was no reasonable prospect of success in the proceedings.

5 The Magistrate in effect considered that there needed to be some evidence of the failure of Mr Keller's application being on the basis of Polish birth, ethnicity or disability. The Magistrate was not satisfied that there was any arguable case in relation to any of these because of the lack of nexus. No further evidence has been placed before me in relation to this matter in addition to that which was before the Magistrate. I have considered the evidence and do not think that it was attended by sufficient doubt to warrant the grant of leave in the present case. In reaching this conclusion I have had regard to the authorities which have been cited in the written submissions to me, including the well-known decision in Decor Corporation Pty Ltd & Another v Dart Industries Inc (1991) 33 FCR 397, and to the two questions which are raised there, namely whether the decision is attended by sufficient doubt to warrant it being considered by the Court and whether substantial injustice would result if the decision were allowed to stand assuming it was wrong.

6 In the present case I am not persuaded that the merits of the case are such that there is sufficient doubt or that substantial injustice would result if leave were not granted. Accordingly, in the circumstances, I am not persuaded that the decision of the Magistrate refusing the application should be set aside, nor am I persuaded in relation to the instant application that an extension of time ought be granted for the purpose of lodging an application for leave to appeal. Accordingly, the application before me is dismissed.

7 I order that the applicant pay the costs of the respondent in this matter.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 28 February 2002

The Applicant appeared on his own behalf
Counsel for the Respondent:	Mr Appudurai
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 February 2002
Date of Judgment:	15 February 2002