SZEMY v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 8

FEDERAL COURT OF AUSTRALIA

SZEMY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 8

SZEMY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1867 of 2004

TAMBERLIN J
SYDNEY
10 JANUARY 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1867 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZEMY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	10 JANUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal is 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 1867 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

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

JUDGE:	TAMBERLIN J
DATE:	10 JANUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a decision of a Federal Magistrate.  The matter has had a long and complex history involving a number of proceedings, originally commenced in the High Court, and there have been several proceedings in this Court.  The respondent has provided a detailed chronology of these events.

2. The decision of the Federal Magistrate was made because the applicant had failed to appear at the hearing before the Magistrate.  The applicant filed within time an Application for Extension of Time to File and Serve Notice of Appeal, and therefore no extension of time is required.  However, since the decision of the learned Magistrate is an interlocutory decision, leave is required before the appeal is competent.

3. When the matter came on for hearing before me this morning, the applicant did not, in my view, provide any ground to establish that the decision of the Refugee Review Tribunal was attended with doubt sufficient to warrant the grant of leave.  The interest of justice does not fall in favour of the applicant particularly having regard to the history of multiple litigation which she has instituted without success to date.  In these circumstances, I am not persuaded that any purpose would be served by granting leave to appeal.  The criteria on which leave to appeal in interlocutory matters may be granted is well settled, and is set out in the decision of Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. It has not been satisfied. Accordingly, I dismiss the application for leave to appeal.

4. The respondent has made an application for indemnity costs on the basis that the applicant has initiated extensive and unjustified litigation in this matter.  The making of an order for indemnity costs is an exceptional one.  The applicant has informed me that she has been resident in Australia for over 17 years.  The case is a difficult one, from the point of view of the circumstances of the applicant, and I am not persuaded that the circumstances are exceptional or special and I consider that the ordinary rule that costs should be paid on a party/party basis should be departed from.

5. Accordingly, the order for costs is made in favour of the respondent on a party/party basis, to be paid as taxed or agreed.

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:             10 January 2005

The Applicant appeared in person with the assistance of an Interpreter.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	10 January 2005
Date of Judgment:	10 January 2005