Case: Jackamarra v Krakouer [1998] HCA 27 ; (1988) 195 CLR 516
Outcome: applied
In such a case the principles upon which the Court proceeds are well settled. An application for an extension of time in which to lodge an appeal is governed by considerations discussed in Jackamarra v Krakouer [1998] HCA 27 ; (1988) 195 CLR 516 ; Jess v Scott (1986) 12 FCR 187: see also SZAPG v Minister of Immigration and Citizenship [2007] FCA 372 at [7] - [8] per myself. In essence the court seeks an outline of the merits of the case sought to be brought out of time. If it appears to be a case that is strong on the merits and which ought to be heard in fairness to the parties and the court thinks it proper that it ought to be allowed to proceed, time is usually extended. However, if it appears to be a flimsy case, weak on the merits, the Court will not extend time. The Court does not go into detail on the merits but likes to know something about it. That was the approach taken by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091 which was approved in Jackamarra 195 CLR at 519-520 [3]-[4] by Brennan CJ and McHugh J and similarly at 540-541 [66] par 4 by Kirby J. 23 As Brennan CJ and McHugh J said in Jackamarra 195 CLR at 520 [4]: "To grant the application for an extension of time is to put at risk a vested right of the respondent." Here the Commonwealth had a vested right, after the seven days had expired, protecting it from further vexatious litigation of the present kind being brought by Mr Croker. These proceedings, as the history set out by Cowdroy J and in part recited above shows, have no legitimate forensic purpose. They are simply an attempt to re-litigate a case which was properly before the Federal Magistrates Court with whose directions Mr Croker, without explanation, failed to comply and was unsuccessful in his application to appeal from those orders. 26 For these reasons, I am of opinion that Mr Croker has failed to make out any reason upon which an extension of time ought to be granted. I am satisfied that even if an extension of time were granted, leave to appeal would never have been granted because Cowdroy J's decision is not attended with sufficient doubt to want the grant of leave, being in my opinion, undoubtedly correct. Also, no injustice, let alone substantial injustice, would result from a refusal of a leave to appeal: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ. For these reasons the application for leave to appeal must be refused. 27 The Commonwealth seeks an order that its costs be paid by Mr Croker on an indemnity basis. I am satisfied for the reasons that I have given that these proceedings had no legitimate forensic purpose and were the plainest abuse of the process of the court. Mr Croker failed to identify any error in Cowdroy J's judgment which could have warranted a grant of leave being made. As Cowdroy J found, the proceedings before him had been instituted solely for the purpose of circumventing the orders made in the Federal Magistrates Court. 28 The application for leave to appeal was without foundation and unsupported by any evidence of any injustice. I am satisfied that the vexatiousness of the proceedings and their abusive nature warrants an order that Mr Croker pay the Commonwealth's costs taxed on an indemnity basis. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 27 June 2008 The Applicant: Appeared in person Solicitor for the Respondent: D Dinnen, Australian Government Solicitor Date of Hearing: 20 May 2008 Date of Judgment: 20 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/972.html