FEDERAL COURT OF AUSTRALIA

S442 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1452

Federal Court of Australia Act 1976 (Cth) s 25(2)

S442 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 2001 OF 2003

HELY J

2 DECEMBER 2003

SYDNEY

THE COURT ORDERS THAT:

1.         The application for leave to appeal be referred to a Full Court.

2.         The hearing of the application for leave to appeal be expedited so that, if practicable, it can be heard in the Full Court sittings in February 2004.

3.         On or prior to Monday 2 February 2004 the applicant file and serve a draft notice of appeal containing a detailed specification of the grounds of appeal upon which the applicant proposes to rely if leave to appeal is granted.

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

REASONS FOR JUDGMENT

1                     I have before me an application for leave to appeal from a decision of Allsop J given on 28 October 2003.  The application was filed within the time limited by Allsop J for that purpose.  The application for leave to appeal is accompanied by a document styled Draft Notice of Appeal, but that document does not set forth any grounds of appeal.

2                     As I read Allsop J’s decision, one of the issues with which his Honour was concerned was whether his judgment was a final judgment from which an appeal lay as of right, or whether it was an interlocutory judgment which required leave to appeal.  Accordingly, his Honour ordered that if the applicant filed an application for leave to appeal within the time which he specified, and if it be the case (contrary to the Minister’s submissions) that a notice of appeal is required, the application for leave to appeal should stand as a notice of appeal.  His Honour intended that one document should be filed if his decision was to be challenged which would stand as an application for leave to appeal if leave was required, or which would stand as a notice of appeal if leave was not required. 

3                     Had the applicant filed a notice of appeal then the Minister would probably have applied for it to be dismissed as incompetent.  That is an application which would need to be made to a Full Court of the Federal Court of Australia, as it is not one of the applications listed in s 25(2) of the Federal Court of Australia Act 1976 (Cth) which can be determined before a single Judge.

4                     As I understand the authorities it is a matter for me to decide whether I should hear the application for leave to appeal, or whether it should be referred to a Full Court.  The factors to which I have just referred suggest that it would not be appropriate for me to hear the application, but that it would be more appropriate for it to be referred to a Full Court.  Another reason for adopting that course is that it would enable an authoritative determination, if that were thought to be appropriate, whether or not leave to appeal is required in cases such as the present, there being a large number of similar cases pending in this Court.

5                     The applicant did not ask me to take this course because it is clear to me that he has no concept of what is involved in distinguishing between a final judgment and an interlocutory judgment.  As the applicant does not speak the English language and has no legal training, it is entirely understandable that this should be so.  However, the applicant did tell me of efforts he has made in order to secure legal representation, - efforts which have so far proved unsuccessful and he asked me for an adjournment for 30 - 45 days so that he could pursue his efforts.

6                     If I refer the application for leave to appeal to a Full Court and if I expedite the hearing of the application for leave to appeal so that it can be heard in the February sittings, I will incidentally be acceding to the applicant’s request for further time.  Therefore, I direct that the application for leave to appeal should be referred to a Full Court.  I direct that the hearing of the application be expedited so that if practical it can be heard in the February sittings of the Court.

7                     I will have the matter referred to the registry in order to give effect to those directions, subject to one outstanding matter.  That is, before the matter can be heard by a Full Court the applicant will need to formulate the grounds of appeal upon which he wishes to rely and that will have to be done before the commencement of the Full Court sittings which will be at the end of January 2004. 

8                     I direct that on or prior to Monday 2 February 2004 the applicant should file with the Court and serve upon the Minister’s solicitor a draft notice of appeal containing a detailed specification of the grounds of appeal upon which the applicant proposes to rely if leave to appeal is granted.

Associate:

Dated:              10 December 2003