SZCYR v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 432

FEDERAL COURT OF AUSTRALIA

SZCYR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 432

Federal Magistrates Court Rules rule 13.03(2)(b), 16.05(2)(c)

Federal Court of Australia Act 1976 (Cth) s 24(1A), s 25(2)(a)

SZCYR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 161 OF 2005

HELY J
6 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 161 OF 2005

BETWEEN:	SZCYR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	6 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal be dismissed with costs.

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 161 OF 2005

BETWEEN:	SZCYR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	6 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 20 January 2005 Federal Magistrate Barnes dismissed the application filed in the Federal Magistrates Court by the present applicant on 11 March 2004. The application was dismissed pursuant to rule 13.03(2)(b) of the Federal Magistrates Court Rules by reason of the applicant’s failure to comply with an order made by her Honour on 14 December 2004 that the applicant file and serve a further amended application with full particulars of the grounds relied upon by 5 January 2005.  This was the second instance of non-compliance with orders which had been made for the filing of a fully particularised application by the applicant.

2. On 8 February 2005 the applicant applied to this Court for leave to appeal from that decision. Leave to appeal is required under section 24(1A) of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’) as the judgment of Federal Magistrate Barnes is interlocutory, but the application is one which may be heard and determined by a single judge: Federal Court Act s 25(2)(a).

3. The ground on which leave to appeal is sought is that the applicant had filed an amended application on 21 October 2004.  That is true but it was the deficiencies in that amended application which were the catalyst for the orders made by the Federal Magistrate on 14 December 2004.

4. In my opinion leave to appeal should be refused on the grounds of futility as it has not been shown that the Federal Magistrate erred in the dismissal of the application for non-compliance with the orders made on 14 December 2004.  The order for dismissal was correctly made upon the basis of the materials which were then before the Federal Magistrate.

5. The applicant has told me this morning that the reason he did not comply with the order was that his lawyer was away on holidays at the time. I note in passing that this explanation appears to be inconsistent with the proposition put to the Federal Magistrate that the applicant could not afford to appoint a solicitor. Even assuming the accuracy of the explanation, it does not show that the Federal Magistrate committed any error in making the orders which she did. No substantial injustice would accrue to the applicant by reason of the refusal of leave to appeal as it is open to the Federal Magistrates Court to set aside the order of dismissal under rule 16.05(2)(c) of the Federal Magistrates Court Rules if such an application were made, and if sufficient grounds for the making of an order pursuant to that rule were established.

6. It is not for this Court to express any opinion, and I wish to make it pellucidly clear that I am not doing so, as to whether such an application should be made or if made, what the result of it should be.

7. The application for leave to appeal is dismissed with costs.

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

Associate:

Dated:             14 April 2005

The applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	6 April 2005
Date of Judgment:	6 April 2005