Case: Jess v Scott (1986) 12 FCR 187
Outcome: applied
first issue was the factor of expiration of eight years since her Honour's decision was handed down in this Court, which was acknowledged by counsel for the applicant to be 'an extraordinarily long time'. Discussion was undertaken by the parties of the implications of the Full Federal Court decision in Jess v Scott (1986) 12 FCR 187 made on 4 November 1986, where it was held by a Full Federal Court (Lockhart, Sheppard and Burchett JJ) that an extension of time should be granted in the context of that litigation, and in relation to which, because of a misunderstanding on the part of the solicitor for the intending appellant as to the date of delivery of the judgment sought to be appealed, the notice of appeal was filed and served on the day next following the last day limited by the Federal Court Rules for appeal. The Federal Court Rules then required, and still do, the establishment of 'special reasons' for leave to file and serve an appeal outside the requisite period of 21 days (Order 52 Rule 15). In the joint judgment of the Full Court at 195-196 in Jess , the following appears: 'What is needed to justify an extension of time... 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... the expression "special reasons" is intended to distinguish the case from the usual course according to which is the time 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 that the use of the expression "for special reasons" implies something narrower than this. ... In the circumstances of the present case... we formed the view that there were plainly special reasons which justified the making of the order sought.' The special reasons sought here to be so established by the applicant were purportedly founded upon the history of the steps which were taken by him up to the time of the hearing before O'Connor J back in June 1998. In any event, it was conceded by counsel for the applicant that the principle of Anshun estoppel may apply, but it was contended nevertheless that there were special circumstances in this case which would permit me to exercise my discretion to allow the matter to proceed, including the asserted circumstances that '[t]he applicant did not have legal representation at the hearing' before her Honour, at least for the reason that he 'could not afford legal representation', and further that there will be 'no disadvantage to the Minister from the re-agitation of these matters'. The second issue raised and sought to be addressed by the applicant related to the explanation for the delay. The applicant explained that at all times since June 1998, he had been involved in court proceedings for the purpose of challenging the decision of the Tribunal of 30 December 1997, and asserted that he had not delayed in progressing the court proceedings, although each proceeding has taken a long time to resolve due to factors beyond his control. I have not been presented with '... something very persuasive indeed to justify a grant of leave' , within the dicta cited in Jess , in order to appeal the decision of O'Connor J. The applicant's delay in applying for leave to appeal the decision of O'Connor J has been very lengthy in scope, falling of course just short of eight years. Moreover it is not without significance that the applicant decided in any event to pursue what the applicant evidently preferred or at least chose as another avenue of perceived redress by way of class action in another superior court of record. The pursuit of that other avenue having ultimately failed, I am unable to accept that there remains any viable alternative appellate redress, by way of resort to an application for an extension of time to appeal the judgment of this Court delivered virtually eight years ago. In my opinion, no special reason has been made out for leave to appeal the judgment of O'Connor J delivered on 10 June 1998, at least for the reason I have just indicted. Moreover and in any event, I have been unable to distil any conceivable error of law appearing in her Honour's reasons for judgment that might conceivably offer a viable prospect of success on any appeal, if leave for that purpose was to be granted. The present application for an extension of time must therefore be dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 14 August 2006 Counsel for the Applicant: B Zipser Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 June 2006 Date of Judgment: 14 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1042.html