S1912/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 938

FEDERAL COURT OF AUSTRALIA

S1912/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 938

S1912/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

NSD 826 of 2005

EDMONDS J
16 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 826 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	S1912/2003 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 $1,000.00.

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 826 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	S1912/2003 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 Magistrate's Court of Australia constituted by Federal Magistrate Barnes and given on 15 April 2005.  Federal Magistrate Barnes dismissed an application to set aside orders that had been made in chambers dismissing the applicant's application for judicial review. 

2. Subsection 24(1A) of the Federal Court of Australia Act provides that an appeal shall not be brought from a judgment of, inter alia, the Federal Magistrate's Court, that is an interlocutory judgment, unless the court or a judge gives leave to appeal. That provides the statutory background to the current application. Counsel for the respondent has submitted that this court should have regard to two considerations in considering the applicant's application for leave to appeal.

3. These considerations come out of a decision of a full court of this court in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 in which the Full Court adopted the considerations that were applied in Niemann v Electronic Industries Ltd [1978] VR 431 as an appropriate litmus test for the general run of cases in which leave to appeal from an interlocutory decision is sought.

4. Those considerations are, firstly whether in all the circumstances the decision is attended by sufficient doubt to warrant it being reconsidered by the full court and secondly, whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

5. As was put to me by counsel for the respondent Minister, it is for the applicant seeking leave to appeal to satisfy the court as to both these matters. 

6. Having heard both parties I am firmly of the view that the applicant for leave in this case cannot satisfy the court on the first of these matters.  The decision from which leave to appeal is sought is not, in my view, attended with sufficient doubt to warrant it being reconsidered by a full court.  For that reason I would dismiss the application.

7. The respondent asks that I make a fixed costs order.  I order that the applicant pay the respondent's costs fixed at $1000.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:             7 July 2005

The Applicant appeared in person.

Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	16 June 2005
Date of Judgment:	16 June 2005