Applicant S594 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1501

FEDERAL COURT OF AUSTRALIA

Applicant S594 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1501

APPLICANT S594 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1381 of 2004

WHITLAM J
22 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1381 OF 2004

BETWEEN:	APPLICANT S594 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	22 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The notice of motion be dismissed with costs.

2.Leave to appeal from the judgment of Branson J of 23 August 2004 be refused.

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 1381 OF 2004

BETWEEN:	APPLICANT S594 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	22 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant’s notice of motion filed on 24 September 2004 has been listed for hearing today.  The motion seeks leave to appeal from an interlocutory judgment of Branson J given on 23 August 2004 refusing an application for an order nisi for constitutional writs: Applicant S594 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1110.

2. The notice of motion should not have been accepted for filing in the Registry as it was filed more than seven days after the delivery of judgment by her Honour: O 52 r 10(2) of the Rules.  A formal application for further time in which to file a notice of motion has not been made but I have heard the applicant on the question of whether leave should be granted to appeal from the judgment.  The principles governing the grant or refusal of leave are well known: see Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. No basis has been suggested by the applicant upon which it would be appropriate to grant leave to appeal from the judgment of Branson J.

3. Accordingly, I order that the notice of motion be dismissed with costs and that leave to appeal from the judgment of Branson J be refused.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             18 November 2004

Counsel for the applicant:	The applicant appeared in person
Solicitor for the respondent:	Mr M J Allatt from the Australian Government Solicitor
Date of hearing:	22 October 2004
Date of judgment:	22 October 2004