NART v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 77 (11 February 2004)

NART v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 77

NART v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 700 of 2003

NARU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 705 of 2003

ALLSOP J
11 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 700 of 2003

BETWEEN:	NART APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	11 FEBRUARY 2004
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 705 of 2003

BETWEEN:	NARU FIRST APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	11 FEBRUARY 2004
WHERE MADE:	SYDNEY

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	N 700 of 2003

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

JUDGE:	ALLSOP J
DATE:	11 FEBRUARY 2004
PLACE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 705 of 2003

BETWEEN:	NARU FIRST APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	11 FEBRUARY 2004
PLACE:	SYDNEY

1 This is an application for leave to appeal from orders made by a Judge of this court at first instance, dismissing the notice of motion filed by the applicants on 7 November. That notice of motion filed on 7 November sought various orders amending the procedure which the Docket Judge had set out, but, in essence, asked for orders that a hearing date be set aside and that further time be given to the applicants to prepare for the hearing and obtain legal assistance.

2 The history of the matter is set out in the reasons of the primary judge dated 18 November, 2003, see NART -v- Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1343. The primary judge dismissed the notice of motion from those orders made on 18 November. The applicants seek leave to appeal by notice of motion filed in the proceedings and filed on 24 November 2003. The application for leave came before me last December at which time it became apparent that there was an appeal to the New South Wales Legal Aid Commission in relation to the refusal of legal aid. In those circumstances, I notified the primary judge of that fact and of the decision of the Full Court in Wilson -v- Alexander [2003] FCAFC 272.

3 I stood the application for leave over for a short period of time to allow the primary judge to consider the matter, and her Honour, with the application for leave to appeal before me pending, stood the matter over to February 2004. I relisted the matter, that is, the application for leave to appeal, in December but no interpreter was available on that day.

4 One applicant requires a Swahili interpreter, the other a Kikuyu interpreter. The Court has not been able to obtain a Kikuyu interpreter but has been able to obtain a Swahili interpreter. Applicant NART who requires the Swahili interpreter has had the assistance of an interpreter today, and I should add, has some facility in the English language, though I accept that she would, in conducting litigation, reasonably require a Swahili interpreter. NART is able to communicate with her stepsister NARU, thus I have conducted the matter on the basis that NART would speak both through the Swahili interpreter and communicate any material essential for NARU and receive any communication from NARU.

5 By reason of the events that I have identified, the applicants have obtained an adjournment over the period from December to February. I am not aware of the present fate of the legal aid application and it is not a relevant consideration before me today. What is before me today is an application for leave to appeal from, in effect, the refusal of an adjournment on 18 November 2003 by the primary judge on the material that was before her Honour.

6 The principles for upsetting a procedural decision of a Docket Judge are too well known to require repetition, save and except for the benefit of the litigants in person. It should be said that an error of principle and a consequence of an injustice need to be demonstrated. On the material before her Honour on 18 November 2003, I see no basis to conclude that it could be reasonably argued that there is any error of principle in the approach of her Honour to the adjournment application. In any event, the application has in large part been superseded by events. If it be the case that by reason of what has happened since December there are grounds for some further indulgence of time, that application can be made to the Docket Judge. Limiting myself to the material before me and the application before me, I am only called upon in the appellate jurisdiction of this Court to decide whether or not there should be leave to appeal from the orders of the primary judge on 18 November 2003. In my view, there was no error of principle by her Honour in her Honour's reasons and leave should not be granted.

7 Mr Cramer of the respondent's solicitors has handed up a helpful affidavit setting out the chronology of this matter. I grant leave to file that document in Court. I should add that there have been a large number of applications of an interlocutory kind. That is not a matter that has affected my reasons today.

8 The notice of motion of 24 November is not crisply drawn as an application for leave to appeal. To the extent that it is an application for leave to appeal, I dismiss it in the appellate jurisdiction of the Court and I order that the applicants pay the respondent's costs of the application. The notice of motion may be seen to call for other matters. One of the matters that the notice of motion seeks is that the matter be heard by three judges. It is not clear whether that was a request that the leave application be heard by three judges or that the appeal be heard by three judges or that the application proper at first instance be heard by three judges. The matter is currently being heard by a single judge of the Federal Court of Australia. Her Honour is not a Federal Magistrate, she is a judge of a superior court of record, that is, the Federal Court of Australia. There is no warrant for the applicant's case to be heard by three judges at first instance.

9 The substance of the notice of motion filed on 24 November was an application for leave. To that extent I think it appropriate to deal with it as a leave application and simply dismiss the notice of motion. If there is any matter which the applicants wish to pursue before the Docket Judge they will no doubt avail themselves of the procedures of the Court.

(2) The applicants to the notice of motion being the applicants to the proceedings pay the respondent’s costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Applicants appeared in person with the assistance of an interpreter.

Counsel for the Respondent:	Mr B Cramer

Solicitor for the Respondent:	Blake Dawson Waldron

Date of Hearing:	11 February 2004

Date of Judgment:	11 February 2004

1.	The notice motion filed on 24 November 2003 be dismissed.
2.	The applicants to the notice of motion being the applicants to the proceedings pay the respondent’s costs.