Applicant S430 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1743

FEDERAL COURT OF AUSTRALIA

Applicant S430 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1743

APPLICANT S430 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1610 OF 2004
TAMBERLIN J
16 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1610 OF 2004

BETWEEN:	APPLICANT S430 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	16 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time to file and serve a notice of appeal is dismissed.
2. The applicant pay the respondent’s costs on an indemnity basis, assessed at $1200.

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 1610 OF 2004

BETWEEN:	APPLICANT S430 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	16 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file and serve a notice of appeal from a judgment of a judge of this Court given on 13 October 2004.  The draft grounds of appeal are cast in general terms and do not disclose any particular basis for granting the appeal.  When the matter came on for hearing the applicant requested time within which to prepare his case and to seek legal advice.  I am not satisfied that sufficient grounds have been shown to adopt this course and I refuse that application.

2. The matter has had a long history, which is set out in a chronology attached to an affidavit of Ms Bernadette Rayment, which was filed in Court on behalf of the respondent (“the Minister”) on 16 December 2004.  I note that when the matter came on for hearing before the primary judge on the first occasion, on 6 October 2004, his Honour adjourned the proceedings so that the procedure under s 78B of the Judiciary Act 1901 (Cth) could be followed.  That procedure was followed, and no submissions were made by any of the Attorneys-General.  His Honour accordingly, for reasons which he gave in his short extemporary judgment, dismissed the order nisi. 

3. I am not persuaded that any grounds have been made out to demonstrate any appealable error of law or principle in the reasoning of the primary judge and accordingly, I dismiss the application for an extension of time to file and serve a notice of appeal.  Had there been any indication of an arguable case in this matter I would have been disposed to consider further whether to grant an extension of time. However, I am not persuaded in the circumstances that any such arguable case arises.

4. I note that his Honour the primary judge made an order that indemnity costs be paid by the applicant.  The position has not changed so far as the strength of the case is concerned, and I think that this order is appropriate. Accordingly, I am disposed to order that the applicant pay the Minister’s costs assessed at $1200.

5. The order of the Court is that the application for an extension of time to file and serve a notice of appeal be dismissed with costs, and that the applicant pay the costs of the Minister on an indemnity basis, assessed at $1200.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            16 December 2004

The Applicant appeared in person with the assistance of an interpreter.
Solicitors for the Respondent:	Sparke Helmore
Date of Hearing:	16 December 2004
Date of Judgment:	16 December 2004