Applicant A376 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 222

FEDERAL COURT OF AUSTRALIA

Applicant A376 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 222

APPLICANT A376 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N2557 OF 2003

TAMBERLIN, MADGWICK AND HELY JJ
SYDNEY
16 AUGUST 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2557 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT A376 OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	TAMBERLIN, MADGWICK AND HELY JJ
DATE OF ORDER:	16 AUGUST 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application to amend the Notice of Appeal is dismissed.

2.The appeal is dismissed.

3.The appellant pay the respondent’s costs of this appeal.

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	N 2557 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT A376 OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	TAMBERLIN, MADGWICK AND HELY JJ
DATE:	16 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the appellant made an application at the outset of the hearing of the appeal to file an Amended Notice of Appeal to raise two new grounds that were not canvassed before the judge below.  We note that the appellant has informed the Court that it is not proposed to press the grounds in the Notice of Appeal as it presently stands, but to simply rely on the two new grounds.

2. The view of the Court is that leave to amend the Notice of Appeal in order to raise the matters which were not canvassed at first instance should be refused because of the lateness of the application; the absence of any satisfactory explanation as to why the matters were not raised before the primary judge although the appellant had legal representation; and the fact that it may be unfair to the respondent, who may have been able to call evidence at first instance to rebut the proposed allegations, if they had been made at that stage.

3. We are also of the view that the merits in the matter on the part of the appellant are not sufficiently strong to warrant the exercise of the Court exercising its discretion in favour of allowing the amendments to be made in the interests of justice.

4. Accordingly, the order of the Court is that the application to Amend the Notice of Appeal is dismissed.  The appellant does not rely upon any other grounds in this appeal, apart from the proposed amendments, the appeal is dismissed with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Madgwick and Hely.

Associate:

Dated:            20 August 2004

Solicitor for the Appellant:	Silva Solicitors
Counsel for the Respondent:	Stephen Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	16 August 2004
Date of Judgment:	16 August 2004