Ryde v Sec Department of Family and Community Services

[2005] FCA 886

FEDERAL COURT OF AUSTRALIA

SZDWV v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 886

SZDWV v Minister for Immigration and Multicultural and Indigenous Affairs

NSD 618 of 2005

EDMONDS J
16 JUNE 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 618 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDWV APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EDMONDS J
DATE OF ORDER:	16 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the respondent’s costs fixed in the amount of $900.00.

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 618 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDWV APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EDMONDS J
DATE:	16 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT GIVEN EX TEMPORE
(REVISED FROM THE TRANSCRIPT)

1. This is an application for leave to appeal against a judgment of the Federal Magistrates Court handed down on 4 April 2005 dismissing an application under Federal Magistrates Court rule 13.03(1) for failure to comply with an order of the court.  The order required the applicant to file and serve an amended application giving full particulars of each ground of review relied upon by 23 December 2004.

2. When the matter came before the Federal Magistrates Court, the Federal Magistrate was satisfied that the applicant was on proper notice that his application might be dismissed.  Indeed, the applicant appeared that day.  The Federal Magistrate found that the applicant agreed that he did not attend the Tribunal hearing and said that this was because he had no time to attend and forgot.  The Federal Magistrate further found that the applicant had not indicated any ground of jurisdictional error upon which he wished to rely and further found that it could not see that there was any prospect that the applicant, or a lawyer on his behalf, could find one.

3. The Federal Magistrate further found that no arguable ground of jurisdictional error had been raised in the application which had been filed and in those circumstances the Federal Magistrate was satisfied that this was a proper basis to dismiss the application under rule 13.03(1) for failure to comply with the order of the court.

4. The decision of the Federal Magistrates Court being interlocutory in nature, an appeal to this Court from that judgment requires the leave of this court.  The applicant timely filed an application for such leave and in support of that application filed an affidavit which was in a relatively short form.  That affidavit does not in its terms disclose any error on the part of the Federal Magistrate in making the judgment that was made on 4 April 2005.

5. In order for the applicant to successfully obtain leave to appeal against an interlocutory judgment, it is necessary that this court be satisfied as to two matters.  First, that in all the circumstances the decision on which leave is sought to appeal is attended by sufficient doubt to warrant it being reconsidered by the Full Court and secondly, that substantial injustice would result if leave were refused, supposing the decision to be wrong.  These are the principles which come out of the decision of this Court in Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

6. Counsel for the Minister addressed me in these terms, namely that because these considerations had not been satisfied the court should not grant leave to appeal.  I have suffered from the difficulty that the applicant did not appear this morning in support of his leave application.  Nevertheless, having read and considered the judgment of the Federal Magistrates Court below, and having heard counsel for the respondent Minister, I am satisfied that it would not be possible for the applicant to persuade me that either of the relevant considerations are met in the present case.

7. In those circumstances, I have no alternative but to dismiss the application for leave to appeal and I do so.

8. The respondent asks that I make a fixed costs order.  I will make that order.  I order that the applicant pay the respondent's costs fixed in the sum of $900.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:            30 June 2005

The applicant did not appear
Solicitors for the Respondent:	Clayton Utz
Date of Hearing:	16 June 2005
Date of Judgment:	16 June 2005