Whittaker v Child Support Registrar [2003] FCA 12 (13 January 2003)

Last Updated: 14 January 2003

FEDERAL COURT OF AUSTRALIA

Whittaker v Child Support Registrar [2003] FCA 12

MARK ALAN WHITTAKER V CHILD SUPPORT REGISTRAR

Q 185 of 2002

SPENDER J

BRISBANE

13 JANUARY 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 185 OF 2002

BETWEEN:	MARK ALAN WHITTAKER APPLICANT
AND:	CHILD SUPPORT REGISTRAR RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	13 JANUARY 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The time within which to file a notice of appeal from the judgment of Dowsett J of 24 October 2002 be extended until 4 December 2002.

2. The draft notice of appeal annexed to the affidavit of Mark Alan Whittaker filed 4 December 2002 stand as the notice of appeal.

3. The appeal be listed for mention at the callover in February 2003 for matters which will be heard by the Full Court in May 2003.

4. There be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 185 OF 2002

BETWEEN:	MARK ALAN WHITTAKER APPLICANT
AND:	CHILD SUPPORT REGISTRAR RESPONDENT

JUDGE:	SPENDER J
DATE:	13 JANUARY 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 On 4 December 2002, the applicant, Mark Alan Whittaker, filed an application for an extension of time within which to file and serve a notice of appeal from the judgment of Dowsett J of 24 October 2002. An extension of time is required because the notice of appeal was not filed and served within twenty-one days, being the time limited by O 52 r 15 of the Federal Court Rules.

2 In respect of the application to extend time, Mr Whittaker has submitted his argument in writing, pursuant to O 52 r 15A. A letter dated 17 December 2002 from the respondent, responding to a letter from the Deputy District Registrar of 11 December 2002 which enclosed a copy of the draft notice of appeal, said in part:

"Our client has instructed us to advise that she has no objection to the application for leave to appeal being dealt with on the papers.

Our client only wishes to say that it is not clear from the notice of appeal what prospects of success any appeal may have."

3 The draft notice of appeal sets out the following grounds of appeal:

"2.1 The Learned Judge erred at law in reaching conclusions upon matters of law based upon errors of fact.

2.2 The Learned Judge erred in that there were no grounds based on fact or law upon which he exercised his discretion to dismiss the application."

4 There is a want of particularity in these grounds of appeal. However, while it will be necessary for Mr Whittaker to specify the particulars of the errors of law and the errors of fact that are referred to in the first ground, that is not a reason, in my view, why an extension of time should not be granted.

5 Having regard to the advice by the solicitor for the respondent, and having regard also to the reason given by Mr Whittaker as to why a notice of appeal was not served within the time required (being the mistaken view of Mr Whittaker that the time within which to file and serve a notice of appeal ran from the delivery of the written reasons for judgment to him, rather than from the pronouncement of the ex tempore judgment), this is a case where there is no prejudice to the respondent in granting an extension of time, and there is no injustice in extending the time within which to file the notice of appeal.

6 For these reasons, I order that the time within which to file a notice of appeal from the judgment of Dowsett J of 24 October 2002 be extended until 4 December 2002 and that the draft notice of appeal annexed to the affidavit of Mark Alan Whittaker filed 4 December 2002 stand as the notice of appeal. The appeal will be listed for mention at the callover in February 2003, with a view to being heard by the Full Court in May 2003.

7 I order that there be no order as to costs on the application for an extension of time within which to file and serve a notice of appeal.

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

Associate:

Dated: 14 January 2003

The applicant appeared on his own behalf
Solicitor for the Respondent:	Australian Government Solicitor
Date of Final Submissions:	18 December 2002
Date of Judgment:	13 January 2003