Keller v Federal Court of Australia [2003] FCA 370

FEDERAL COURT OF AUSTRALIA

Keller v Federal Court of Australia [2003] FCA 370 LECH KELLER v FEDERAL COURT OF AUSTRALIA V 125 of 2003 RYAN J 24 APRIL 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 125 of 2003

BETWEEN: LECH KELLER

Applicant

AND: FEDERAL COURT OF AUSTRALIA

Respondent

JUDGE: RYAN J

DATE OF ORDER: 24 APRIL 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application for extension of time to appeal a decision of the Administrative Appeals Tribunal is refused. 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 125 of 2003

BETWEEN: LECH KELLER

Applicant

AND: FEDERAL COURT OF AUSTRALIA

Respondent

JUDGE: RYAN J

DATE: 24 APRIL 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant seeks an extension of time within which to appeal to this Court from a decision of the Administrative Appeals Tribunal ("the AAT"). The decision of the AAT was that it had no jurisdiction to review a decision of a Deputy Registrar of this Court, declining to accept Mr Keller's application for exemption from, or waiver of, the requirement to pay the fee required by O 62 r 46(3)(d) of the Rules of this Court ("the Rules"). 2 Order 62 regulates, amongst other things, the taxation of costs ordered to be paid by one party in proceedings in the Court to another party. By O 62 r 46(3) it is provided: '(a) A taxing officer may, in the absence of the parties and without making any determination of the individual items in the bill, make an estimate of the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue. (b) The Registrar will notify each party interested in the bill in writing of an estimate made under paragraph (a). (c) Unless within 14 days of receipt of notice under paragraph (b), a party interested files and serves on each other party a notice of objection to the estimate, there shall be no taxation, and the amount of the estimate shall be deemed to be the amount for which a certificate of taxation may issue. (d) The Registrar must not accept a notice of objection for filing unless the party filing the notice pays into the Litigants' Fund an amount of $1250 as security for the costs of any taxation of the bill. (e) Where a notice of objection is filed, the registrar may direct that subrule (4) apply, or that the taxation of the bill proceed.' 3 At the time when the sub-rule was applicable to Mr Keller, the amount of security fixed by paragraph (d) was $750. Although the presence of the word "must" in O 62 r 46(3)(d) suggests that it was mandatory for the Registrar to require payment of the stipulated security before accepting a notice of objection for filing, it seems that the Registrar has a general discretion to decline to apply all or any of the provisions of O 62 r 46, including subrule (3), paragraph (d). That is the effect of O 62 r 46(1) which provides: 'Notwithstanding anything in this Order, the Registrar shall have a discretion to apply the provisions or a provision of this rule and may for that purpose decline to give an appointment to tax a bill on its being filed, and may require the party who filed the bill to lodge any documents in the possession or power of that party.' 4 In addition, Spender J of this Court in Dudzinski v Kellow (2000) FCA 740, took the view that the exercise of the discretion conferred on a Registrar by O 62 r 46(3)(d) is subject to a power in the Court pursuant to s 35A(1)(g) of the Federal Court of Australia Act and O 1 r 8 of the Rules to dispense with the obligation to pay the stipulated sum as security for the costs of any taxation. Accordingly, his Honour in that case entertained an application, (although he did not grant it), for review of a decision of a Deputy Registrar declining to waive payment of the stipulated amount by way of security. 5 In the present case, the applicant did not seek a review directly in this Court, but applied instead to the AAT. In the AAT the matter was carefully considered by Deputy President Forgie who prepared elaborate reasons for decision. Those reasons were published on 9 December 2002 and are set out in twenty-two closely reasoned paragraphs. I have had the advantage of reading the reasons for decision and I consider, with respect, that the conclusion reached by the learned Deputy President that the AAT has no jurisdiction to entertain Mr Keller's application is completely unexceptionable. 6 Accordingly, the present case attracts the application of the principle noted in, amongst other places, by Finn J in Peczalski v Comcare (1999) 58 ALD 697 at 701, where his Honour derived from earlier decided cases the proposition that; 'The particular factors that are of immediate significance [to an application for extension of time within which to appeal from a decision of the AAT] are - (a) the explanation given of the delay; (b) the actions of the applicant in contesting the decision otherwise than by appeal; (c) prejudice to the respondent; and (d) the merits of the application.' 7 In the present case, I consider the merits of the application, in the sense of the prospect of successfully appealing from the decision of the AAT, to be hopeless. As I have already indicated, I regard the reasons for the decision of the AAT that it had no jurisdiction to entertain the application as entirely correct. Accordingly, the present application for an extension of time must be refused. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.