FEDERAL COURT OF AUSTRALIA S1912/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 938 S1912/2003 v Minister for Immigration and Multicultural and Indigenous Affairs NSD 826 of 2005 EDMONDS J 16 JUNE 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 826 OF 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: S1912/2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: EDMONDS J DATE OF ORDER: 16 JUNE 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. 2. The applicant pay the respondent's costs fixed in the amount of $1,000.00. 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 826 OF 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: S1912/2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: EDMONDS J DATE: 16 JUNE 2005 PLACE: SYDNEY REASONS FOR JUDGMENT GIVEN EX TEMPORE (REVISED FROM THE TRANSCRIPT) 1 This is an application for leave to appeal against a judgment of the Federal Magistrate's Court of Australia constituted by Federal Magistrate Barnes and given on 15 April 2005. Federal Magistrate Barnes dismissed an application to set aside orders that had been made in chambers dismissing the applicant's application for judicial review. 2 Subsection 24(1A) of the Federal Court of Australia Act provides that an appeal shall not be brought from a judgment of, inter alia, the Federal Magistrate's Court, that is an interlocutory judgment, unless the court or a judge gives leave to appeal. That provides the statutory background to the current application. Counsel for the respondent has submitted that this court should have regard to two considerations in considering the applicant's application for leave to appeal. 3 These considerations come out of a decision of a full court of this court in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 in which the Full Court adopted the considerations that were applied in Niemann v Electronic Industries Ltd [1978] VR 431 as an appropriate litmus test for the general run of cases in which leave to appeal from an interlocutory decision is sought. 4 Those considerations are, firstly whether in all the circumstances the decision is attended by sufficient doubt to warrant it being reconsidered by the full court and secondly, whether substantial injustice would result if leave were refused, supposing the decision to be wrong. 5 As was put to me by counsel for the respondent Minister, it is for the applicant seeking leave to appeal to satisfy the court as to both these matters. 6 Having heard both parties I am firmly of the view that the applicant for leave in this case cannot satisfy the court on the first of these matters. The decision from which leave to appeal is sought is not, in my view, attended with sufficient doubt to warrant it being reconsidered by a full court. For that reason I would dismiss the application. 7 The respondent asks that I make a fixed costs order. I order that the applicant pay the respondent's costs fixed at $1000. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 7 July 2005 The Applicant appeared in person. Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 16 June 2005 Date of Judgment: 16 June 2005