Barnes v Northern Land Council [2002] FCA 901

FEDERAL COURT OF AUSTRALIA

Barnes v Northern Land Council [2002] FCA 901 RODNEY BARNES v NORTHERN LAND COUNCIL and AUSTRALIAN AGRICULTURAL CO. LTD and NORTHERN TERRITORY POLICE and ABORIGINAL & TORRES STRAIT ISLANDER COMMISSION and CENTRAL AUSTRALIAN ABORIGINAL LEGAL AID SERVICE D.7 of 2002 MANSFIELD J 31 JULY 2002 ADELAIDE (HEARD IN DARWIN)

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY D.7 OF 2002

BETWEEN: RODNEY BARNES

APPLICANT

AND: NORTHERN LAND COUNCIL

FIRST RESPONDENT

AUSTRALIAN AGRICULTURAL CO.

SECOND RESPONDENT

NORTHERN TERRITORY POLICE

THIRD RESPONDENT

ABORIGINAL & TORRES STRAIT ISLANDER COMMISSION

FOURTH RESPONDENT

CENTRAL AUSTRALIAN ABORIGINAL LEGAL AID SERVICE

FIFTH RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 31 JULY 2001

WHERE MADE: ADELAIDE (HEARD IN DARWIN)

THE COURT ORDERS THAT: 1. The application is refused. 2. The applicant pay to the respondents costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY D.7 OF 2002

BETWEEN: RODNEY BARNES

APPLICANT

AND: NORTHERN LAND COUNCIL

FIRST RESPONDENT

AUSTRALIAN AGRICULTURAL CO. LTD

SECOND RESPONDENT

NORTHERN TERRITORY POLICE

THIRD RESPONDENT

ABORIGINAL & TORRES STRAIT ISLANDER COMMISSION

FOURTH RESPONDENT

CENTRAL AUSTRALIAN ABORIGINAL LEGAL AID SERVICE

FIFTH RESPONDENT

JUDGE: MANSFIELD J

DATE: 31 JULY 2002

PLACE: ADELAIDE (HEARD IN DARWIN)

REASONS FOR JUDGMENT 1 This is an application under O 52 r 15(2) of the Federal Court Rules for an order extending the time within which the applicant may appeal from a decision of a Federal Magistrate given on 10 April 2002 reported as Barnes v Northern Land Council & Ors [2002] FMCA 54. The magistrate summarily dismissed an application by the applicant against each of the respondents made on 17 August 2001 under r 13.10 of the Federal Magistrates Court Rules, the parallel rule to O 20 r 2 of the Federal Court Rules. The magistrate also ordered the applicant to pay costs of the application to the respondents. 2 An appeal lies from a decision of a Federal Magistrate to the Court: s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Under O 52 r 15(1) of the Act, an appeal must be instituted within 21 days of the date of the decision from which the appeal is brought. In this instance, the time within which the applicant could appeal expired on 1 May 2002. The applicant did not institute any appeal by that time. Subsequently, when presenting his proposed notice of appeal to the Court out of time on 10 May 2002, it was necessary for him to obtain an extension of time within which to file and serve his proposed notice of appeal under O 52 r 15(2) of the Federal Court Rules. He made the application on 10 May 2002. Although the appeal is to the Full Court, unless the Chief Justice directs otherwise: s 24(1)(d)and 25(1A), an application for an extension of time to appeal may be heard by a single judge: s 25(2)(b) of the Federal Court of Australia Act. 3 Order 52 r 15(2) of the Rules provides "Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal." The nature of special reasons was discussed by the Full Court in Jess v Scott (1986) 12 FCR 187 at 195. 4 In this matter, given the relatively short period of delay, provided the applicant could demonstrate some arguable basis upon which the decision of the magistrate might be shown to be wrong, I would be disposed to extend the time within which the applicant may appeal to the Court. There is no suggestion that any delay on his part has caused prejudice to any of the respondents. Each of the respondents has contended simply that an extension of time should not be granted because there is no possible basis upon which the proposed appeal could be successful. 5 I am mindful also of the fact that the applicant is acting in person, and as he himself said in the course of submissions in support of his application, is not legally trained. It is a matter where it is appropriate to be as sympathetic to the applicant's position as the law permits. Nevertheless, in my judgment, it is necessary to carefully consider the proposed appeal to determine whether there is any prospect of success upon the proposed appeal before granting the extension of time sought.