Tran v Singh

• Jurisdiction: Australia Federal only
• Judge: THAWLEY J
• Judgment Date: 04 February 2019
• Neutral Citation: [2019] FCA 70
• Date: 04 February 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Tran v Singh [2019] FCA 70

Appeal from:	Application for extension of time: Tran v Secretary, Department of Social Services [2016] AATA 550 Application for extension of time and leave to appeal: Tran v Singh [2018] FCA 1512
File numbers:	NSD 2060 of 2018
Judge:	THAWLEY J
Date of judgment:	4 February 2019
Catchwords:	PRACTICE AND PROCEDURE – abuse of process – issue estoppel – where applicant applied for an extension of time to appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal – where extension of time application dismissed – where applicant filed a second extension of time application in identical form – whether second application is an abuse of process – whether second application is barred by an issue estoppel ; PRACTICE AND PROCEDURE – application for extension of time and leave to appeal from decision of this Court dismissing applicant’s earlier application to extend time to appeal under s 44(1) of the AAT Act – whether Court has jurisdiction to hear appeal from decision of a single judge dismissing extension of time application – whether Court has power to grant leave to appeal – application of s 24(1AA)(a) of the Federal Court of Australia Act 1976 (Cth)
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) ss 44(1), 44(2A)(a) Federal Court of Australia Act 1976 (Cth) ss 20(3), 24(1), 24(1AA), 24(1A), 37M Federal Court Rules 2011 (Cth) rr 2.25(3), 33.13, 35.13, 35.14, 36.05
Cases cited:	Committee of Direction of Fruit Marketing v Australian Postal Commission (1980) 144 CLR 577 D A Christie Pty Ltd v Baker [1996] 2 VR 582 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 FEZ17 v Minister for Home Affairs [2018] FCA 1689 Inasmuch Community Inc v Bright [2006] NSWCA 99 National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315 Nominal Defendant v Manning (2000) 50 NSWLR 139 Rana v Google Inc [2017] FCA 542 Torres Strait Regional Authority v Akiba on Behalf of the Torres Strait Regional Sea Claim [2018] FCA 601 WZAUG v A Judge of the Federal Circuit Court of Australia [2018] FCA 649 Zetta Jet Pte Ltd v The Ship “Dragon Pearl” [2018] FCAFC 99
Date of hearing:	4 February 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	43
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	The First Respondent did not appear
Counsel for the Second Respondent:	Ms A Wong of Mills Oakley

ORDERS

		NSD 2060 of 2018
BETWEEN:	HUU LONG TRAN Applicant
AND:	PRAVEEN SINGH First Respondent ; SECRETARY, DEPARTMENT OF JOBS AND SMALL BUSINESS Second Respondent

JUDGE:	THAWLEY J
DATE OF ORDER:	4 FEBRUARY 2019

THE COURT ORDERS THAT:

1. The name of the second respondent be changed to Secretary, Department of Jobs and Small Business.

2. The application for extension of time filed by the applicant on 9 November 2018 be dismissed.

3. The applicant pay the second respondent’s costs as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from Transcript)

THAWLEY J:

1. On 1 February 2018 the applicant, Mr Tran, applied to this Court for an extension of time to appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal dated 29 July 2016. On 12 October 2018, Gleeson J dismissed that extension of time application: Tran v Singh [2018] FCA 1512.

2. Although s 44(1) of the AAT Act provides for an “appeal” from a decision of the Tribunal “on a question of law”, such proceedings engage this Court’s original jurisdiction: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581 (Bowen CJ and Deane J); Committee of Direction of Fruit Marketing v Australian Postal Commission (1980) 144 CLR 577 at 585 (Mason and Wilson JJ).

3. An application for an extension of time within which to institute proceedings in this Court (including proceedings under s 44(1) of the AAT Act), referred to in s 20(3)(b) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), also engages this Court’s original jurisdiction. That was the application dealt with by Gleeson J in her decision of 12 October 2018.

4. Gleeson J concluded, at [16], that the applicant’s proposed appeal had no prospect of success for reasons comprehensively set out by her Honour. Accordingly, she declined to extend the time in which the applicant was permitted to bring an appeal under s 44(1). Her Honour stated:

… I have concluded that the proposed appeal has no prospects of success. Accordingly, it would be futile and therefore not in the interests of justice to grant the extension of time sought, regardless of whether Mr Tran’s explanation for his delay is satisfactory.

5. On 8 November 2018 at 4:56 pm, Mr Tran lodged a further “application for extension of time”. Because that document was not received before 4.30 pm on 8 November 2018, it was taken to have been filed on 9 November 2018: r 2.25(3) of the Federal Court Rules 2011 (Cth) (Rules). This was the twenty-eighth day after her Honour’s decision.

6. The “application for extension of time” included:

The applicant applies for an extension of time:

1. under rule 33.13 to start an appeal under section 44(2A) of the AAT Act;

2. under rule 36.05 to file a notice of appeal.

7. As can be seen, Mr Tran makes two applications. By the “first application”, he seeks an extension of time under r 33.13 of the Rules to appeal under s 44(1) of the AAT Act from the decision of the Tribunal dated 29 July 2016. An appeal under s 44(1) must be instituted not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the relevant person, or within such further time as this Court (whether before or after the expiration of that day) allows: s 44(2A).

8. By the “second application”, Mr Tran seeks an extension of time under r 36.05 of the Rules to appeal from the decision of Gleeson J dated 12 October 2018. A notice of appeal must be filed within 21 days after the date on which the judgment appealed from was pronounced or the order was made: r 36.03.

9. Mr Tran has not sought an extension of time under r 35.14 to seek leave to appeal. An application for leave to appeal (including for leave to appeal from an interlocutory decision) must be made within 14 days after the date on which the judgment was pronounced or the order made: r 35.13. For the reasons given below, such an application would not have succeeded.

10. At the same time as lodging his “application for extension of time”, Mr Tran also lodged an affidavit affirmed by him and dated 8 November 2018. Annexed to that affidavit were a number of documents, including a “Notice of appeal” which stated that Mr Tran desired to appeal from the judgment of...