Pitman v Adminstrative Appeals Tribunal [2005] FCA 1540

FEDERAL COURT OF AUSTRALIA

Pitman v Adminstrative Appeals Tribunal [2005] FCA 1540 BURN PITMAN v ADMINISTRATIVE APPEALS TRIBUNAL AND Minister for Immigration and Multicultural and Indigenous Affairs NSD 1847 of 2005 JACOBSON J 27 OCTOBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1847 OF 2005

BETWEEN: BURN PITMAN

APPLICANT

AND: ADMINISTRATIVE APPEALS TRIBUNAL

FIRST RESPONDENT

MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 27 OCTOBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for an extension of time for an application for leave to appeal is refused. 2. The applicant is to pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1847 OF 2005

BETWEEN: BURN PITMAN

APPLICANT

AND: ADMINISTRATIVE APPEALS TRIBUNAL

FIRST RESPONDENT

MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: JACOBSON J

DATE: 27 OCTOBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1. This is an application for leave to appeal from a decision of Emmett J given on 30 August 2005. On that date his Honour dismissed a notice of motion filed by the applicant on 21 June 2005. The notice of motion sought an order setting aside orders made by Emmett J on 1 June 2005 dismissing the proceedings and ordering the applicant to pay the respondent's costs. 2. The application for leave to appeal was filed on 30 September 2005. Leave to appeal is required because his Honour's judgment and orders of 30 August 2005 were interlocutory. 3. The notice of motion for leave to appeal was filed approximately three weeks after the date provided for in order 52, rule 10(2)(b) of the Federal Court Rules. Order 52, rule 10(2A) permits the court to grant an extension of time to file an application for leave to appeal. The authorities establish that the court has a discretion, and the likelihood of leave to appeal being granted is a relevant consideration. 4. I will proceed upon the basis that Mr Pitman is seeking an extension of time and the question which I therefore have to consider is whether the applicant has any likelihood of success in obtaining leave to appeal. Evidence of reasons for the delay are to be taken into account, see Deighton v Telstra Corporation (Unreported, Full Court of the Federal Court of Australia, 17 October 1997, Lee, Heerey and Nicholson JJ); see also Croker v Phillips Electronics Australia Limited [2000] FCA 1731. 5. An affidavit seeking to explain the delay was filed by the applicant. The reasons for the delay seem to be that the applicant has only recently discovered evidence to substantiate his claim that he was denied procedural fairness in the Administrative Appeals Tribunal ("AAT") by reason of the late service of documents.