Applicant S 321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 938

Federal Court Of Australia

Applicant S 321 Of 2002 v Minister For Immigration & Multicultural & Indigenous Affairs [2003] FCA 938

Applicant S 321 Of 2002 V Minister For Immigration And Multicultural And Indigenous Affairs
N361 Of 2003

Allsop J
4 September 2003
Sydney

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N361 of 2003

BETWEEN:	APPLICANT S 321 of 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	4 SEPTEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT THE ORDERS MADE ON 20 AUGUST 2003 BE VARIED AS FOLLOWS:

1.Order 2 be vacated.

2.In place of order 2 made on 20 August 2003 the following order is made:

“The time for filing any application for leave to appeal be extended to a date 21 days from today.”

3.In place of order 3 made on 20 August 2003 the following order is made:

“The applicant pay the respondent's costs of the proceedings, but such costs are not to include either the cost of attendance before the Court today or the costs of any preparation whatsoever prior to today and after 20 August concerning the form of orders.”

FURTHER, THE COURT ORDERS THAT:

4.The applicant be granted leave, so far as leave is necessary, to file both an application for leave to appeal and a notice of appeal in order that the issue of the proper status of order 1 and the balance of these orders made on 20 August 2003 and today may be considered as an issue on 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	N361 of 2003

BETWEEN:	APPLICANT S 321 of 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	4 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter on 20 August 2003 I made orders numbered 1-6.  I put the matter in the list today for finalisation of the orders.  Mr Smith, who appeared for the respondent Minister, was not in the position to assist me on that day as to some questions I put to him as to the precise form of order.  Miss Watson has appeared today and has put the submission that I should not make order 2.

2. The reason I made order 2 in the form that I did was to sweep up (if I may use that expression) any possibility that other matters might be said to have been before me in addition to the matter remitted from the High Court. 

3. The applicant was unrepresented before me and made no express application for relief under s 39B(1) or (1A) of the Judiciary Act 1903 (Cth). Those matters, in particular anything under s 39B(1), would have been largely identical in terms to the issues raised by the draft order nisi remitted from the High Court, given that s 39B(1) is in identical terms to s 75(v) of the Constitution.

4. It is theoretically legally conceivable that an applicant can propound issues under s 39B(1A)(c) which are wider than the jurisdictional matters raised in the prerogative writ or constitutional writ procedure under s 75(v) and s 39B(1). On the issues propounded in the application I do not see how there could be any independent operation for s 39B(1A).

5. To go back to the reason for the making of order 2.  It was out of abundant caution to ensure that the matter was seen as being finalised in its totality.

6. The Minister submitted, through Miss Watson, that I should not make order 2, that I should only make order 1 as only the draft writ for prohibition, mandamus, certiori and injunctive relief was before me, being the draft order nisi remitted from the High Court.  That is strictly the case.  There was no application under any other provision of the Judiciary Act.  As I have said, that would have made no difference.  In all the circumstances I think, technically speaking Miss Watson is correct and I should only make order 1.

7. To the extent that that creates the position that the orders of the court are interlocutory and that leave is required, that may be an appellable issue in itself.  The concern of the Minister, as I understand it, is that if order 2 is included, the orders are final in that they dispose of all conceivable rights of the parties and there will be an appeal as of right.  Whereas, on the other hand, if only order 1 is made the orders may be interlocutory, requiring leave to appeal.

8. Given the submission of the Minister, and given that strictly speaking only the draft order nisi was before me, I propose to vacate order 2.  It will then be a question for an appellant court to decide whether, in all the circumstances, the orders remaining are interlocutory and whether I should, in all the circumstances, have made order 2 as well, thus making, arguably, the orders final and giving a direct right of appeal without leave.

9. I propose to amend order 3 by ensuring that the applicant not pay the costs of this debate or any aspect of this debate.  The variation I will make to order 3 is that I vacate order 3 and in its place I will make the following order:

   The applicant pay the respondent's costs of the proceedings but such costs are not to include either the cost of attendance before the Court today or the costs of any preparation whatsoever prior to today and after 20 August concerning the form of order.

10. The final orders I make are, first, order 1 as made on 20 August, secondly, order 3, that I have just indicated, thirdly, orders 4, 5 and 6 made on 20 August 2003 can stand as historical orders.

11. Consequent upon the discussion with Miss Watson I began to attempt to explain to the applicant the difference between interlocutory judgments and final judgments.  I took the view and Miss Watson properly did not dissent, that this explanation was going to be beyond the applicant.

12. For these reasons I propose to extend the time for the filing of any application for leave to appeal to 21 days from today's date.  I have also indicated to the applicant that given that there may be a doubt as to whether the orders I have made formally are final or interlocutory that he should, if he wishes to appeal, file both an application for leave to appeal and a notice of appeal within time so as to protect his own position.

13. Therefore the orders that I propose to make are as follows: 

    a.   Order 1, as in 20 August 2003.

    b.   I vacate order 2 made on 20 August 2003. 

    c.   I extend time for the filing of any application for leave to appeal to a date 21 days from today. 

    d.   I will make the costs order as I expressed above.

    e.   Orders 4, 5, and 6 remain as historical orders. 

    f.    The applicant be granted leave so far as leave is necessary to file both an application for leave to appeal and a notice of appeal in order that the issue of the proper status of order 1 and the balance of these orders may be considered as an issue on appeal.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            9 September 2003

The applicant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 August 2003 & 4 September 2003
Date of Judgment:	4 September 2003