FEDERAL COURT OF AUSTRALIA

Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1453

PRACTICE AND PROCEDURE – leave to appeal – direction of judge to refuse documents for filing pursuant to O 46 r 7A of the Federal Court Rules – whether appeal lies

            Bird v Free (1994) 126 ALR 475

Roderick v Australian & Overseas Telecommunications Corporation Ltd (unreported, Federal Court of Australia, von Doussa J, No SG10/92, 6 May 1997)

            Bizuneh v Minister for Immigration & Multicultural Affairs  [2000] FCA 126.

TAFESE ESHETU BIZUNEH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1113 OF 2002

GYLES J

SYDNEY

21 NOVEMBER 2002

THE COURT ORDERS THAT:

1.         I refer this motion for hearing by a Full Court.

2.         I refer the applicant to the Registrar for referral to a legal practitioner pursuant to O 80 of the Rules of Court for advice and representation on the hearing of the motion before the Full Court.

3.         I indicate that expedition should be afforded as far as practicable.

4.         I dispense with the preparation of appeal books.

5.         Leave is reserved to approach the appellate list judge.

6.         Costs to date are reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REVISED EX TEMPORE REASONS FOR JUDGMENT

1                     This is an application by way of notice of motion for leave to appeal against a direction of Emmett J pursuant to O 46 r 7A of the Federal Court Rules that the Registrar refuse to accept an application and affidavit sought to be filed by the applicant.  The evidence on this application consists of the documents sought to be filed together with a letter of 15 October from the Deputy District Registrar to the applicant returning the documents and referring to the direction from his Honour.

2                     This immediately raises the question as to whether or not an appeal lies at all from such a direction.  That is an issue which has been adverted to directly or indirectly in three matters that have been referred to by the solicitor for the respondent, namely Bird v Free (1994) 126 ALR 475;  Roderick v Australian & Overseas Telecommunications Corporation Ltd (unreported, Federal Court of Australia, von Doussa J, No SG10/92, 6 May 1997);  and a decision between these parties, Bizuneh v Minister for Immigration & Multicultural Affairs [2000] FCA 126.

3                     A related problem is that if it is a decision from which an appeal lies no reasons have been afforded to the present applicant.  It is a difficult issue as to how a court considering the grant of leave should approach the matter.  It may be that one way of approaching it is simply to take the documents sought to be filed and have a look at the relevant rule and then come to another de novo opinion about the chances of success.  That is not, however, how appeals should work.  There are other related problems.  If it is a decision from which an appeal lies why was the applicant not present and able to make submissions to the judge?  If, as I am inclined to think, these difficulties point to the fact that this is not in truth a judgment or order of the Court at all but rather an administrative direction, that raises the issue as to how, if at all, such a direction could be challenged. 

4                     As I am probably exercising appellate functions in considering this application it is unwise that I should complete the matter because it may have the result that no appeal would lie from my decision to a Full Court and it would be necessary to seek leave to appeal from the High Court.  Under all the circumstances it seems to me that I have no real alternative but to refer the motion to a Full Court, which I do, reserving questions of costs.  I think that this is a case appropriate for a referral of the problem for legal advice pursuant to O 80 of the Rules of Court in order that there can be proper assistance given in considering of this matter.

5                     It is also appropriate that, insofar as I can arrange expedition, the matter be expedited.  The applicant claims that he is in a very unsatisfactory situation.  In fact he sought some interlocutory relief, however it was not of a kind which I have any jurisdiction to grant in conjunction with an application of this sort.

6                     The orders of the Court are:

1.         I refer this motion for hearing by a Full Court.

2.         I refer the applicant to the Registrar for referral to a legal practitioner pursuant to O 80 of the Rules of Court for advice and representation on the hearing of the motion before the Full Court.

3.         I indicate that expedition should be afforded as far as practicable.

4.         I dispense with the preparation of appeal books.

5.         Leave is reserved to approach the appellate list judge.

6.         Costs to date are reserved.

Associate:

Dated:              25 November 2002