FEDERAL COURT OF AUSTRALIA

Cisinski v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 998

PRACTICE AND PROCEDURE – appeal – interlocutory judgment – leave to appeal –issue of public importance

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Migration Act 1958 s 253

Judiciary Act 1903 (Cth) s 78B

Federal Court Rules O 52 r10(1)

Constitution

Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90 cited

Carr v Finance Corporation of Australia (No 1) (1981) 147 CLR 246 cited

Cisinski v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 507 referred to

Malouf v Malouf  (1999) 86 FCR 134 cited

Versace v Monte [2002] FCA 781 cited

KASCHIMIER CISINSKI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W317 of 2002

LEE J

30 JULY 2004

PERTH

THE COURT ORDERS THAT:

1.                  The respondent have leave to appeal from the orders made on 16 July 2004.

2.                  The appeal be expedited.

3.                  The respondent attend on the Registrar within 7 days to arrange an appointment for the parties to settle the index to the appeal book.

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

REASONS FOR JUDGMENT

LEE J:

1                     This is an application by the respondent for leave to appeal from orders made by me in this matter on 16 July 2004 pursuant to reasons for decision delivered on 17 May 2004 (see:  Cisinski v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 507).  I have assumed, without deciding, that the parties have not erred in treating those orders as an interlocutory judgment under s 24(1A) of the Federal Court of Australia Act 1976 (Cth).  (See:  Carr v Finance Corporation of Australia (No 1) (1981) 147 CLR 246 at 248; Malouf v Malouf  (1999) 86 FCR 134; Versace v Monte [2002] FCA 781).  The grant of leave to appeal from such a judgment is governed by O 52 r 10(1) of the Federal Court Rules.

2                     The respondent made an oral application for leave to appeal at the time the orders were made.  I was not persuaded at that time that in all the circumstances it was appropriate to grant leave but allowed the respondent the opportunity to file further submissions within 7 days if the respondent intended to pursue the application.  I directed that if the respondent filed submissions the applicant may file written submissions in reply by 30 July 2004 and that the application be determined on the papers.

3                     Both parties filed submissions pursuant to the foregoing directions and I have considered the arguments raised in those submissions.

4                     The remaining issue in the substantive application is a claim for damages for unlawful detention.  The applicant has filed further affidavit evidence in support of that claim and the respondent is to file an affidavit in reply by 27 August 2004, after which a date for the hearing of that issue is to be fixed.  In those circumstances normally it would be appropriate for the proceeding to continue and be finally determined before any appeal is commenced.

5                     However, the issue the respondent seeks to ventilate by way of an appeal involves construction of the Constitution of the Commonwealth and construction of the powers vested in the respondent by Parliament by s 253 of the Migration Act 1958 (“the Act”).  That question transcends the personal interests of the applicant in this litigation and involves a matter of public importance.  Notices of the constitutional issue have been distributed to all Attorneys-General under s 78B of the Judiciary Act 1903 (Cth). 

6                     There is no doubt that a matter of importance is raised by the orders made and that an appeal will ensue whatever the form of the final orders.  The question to be addressed now is whether it is appropriate to forestall the reasonably foreseeable determination of the remaining issue pending resolution of the construction of the Constitution and of construction of the Act, which may or may not resolve the issue yet to be determined.

7                     Although it is clearly arguable that the particular circumstances of this case would justify refusal of leave to appeal in order that the hearing of all issues may be completed without delay, on balance the degree of public importance in the question to be decided on the appeal is sufficient to justify interruption of due administration of the legal process.  (See:  Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90). 

8                     The applicant however is entitled to expect that the appeal be conducted with expedition and I will direct that the Court arrange for the hearing of the appeal to be given

priority.  The respondent will be directed to attend on the Registrar within 7 days to arrange an appointment for the parties to settle the index to the Appeal Book. 

Associate:

Dated:              30 July 2004