NBDW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 63 (8 February 2005)

NBDW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 63

PRACTICE AND PROCEDURE – acceptance by registry of notice of appeal despite legislative prohibition – power of single judge to consider competency of appeal – no power – matter remitted to Full Court for consideration

Federal Court of Australia Act 1976 (Cth) s 24(1AAA), 25(2)

Federal Court Rules Order 46 Rule 7A

NBDW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1526 considered

NBDW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1852 OF 2004

HELY J
8 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1852 OF 2004

BETWEEN:	NBDW APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	8 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The matter be referred to the registry to be listed in the February Full Court sittings.
2. Costs of today’s proceedings be costs in the cause.

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 1852 OF 2004

BETWEEN:	NBDW APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE:	8 FEBRUARY 2005
PLACE:	SYDNEY

1 This matter began in the Federal Court on 7 May 2004. On that date Whitlam J transferred the matter to the Federal Magistrates Court and made orders including an order that a fully particularised application be filed and served by 4 June 2004.

2 On 23 August 2004 a Federal Magistrate ordered that an amended application be filed and served by 6 September 2004. The amended application was to contain at least one asserted jurisdictional error and was to give particulars of each jurisdictional error alleged. The respondent was also given leave in case of default to apply for summary dismissal of the proceedings without further notice to the applicant. The order was not complied with and on 10 September 2004 the Federal Magistrate summarily dismissed the applicant’s claim.

3 On 27 October 2004 an application for leave to appeal from that decision was made to this Court and the application was also treated as being an application for an extension of time within which to apply for leave to appeal. On 23 November 2004 Stone J dismissed the application (see NBDW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1526).

4 On 13 December 2004 the appellant filed in the Court a document styled Notice of Appeal. The decision stated to be the subject of the appeal was that of Stone J. It follows from s 24(1AAA) that an appeal may not be brought from a judgment of the Court constituted by a single judge exercising the appellate jurisdiction of the Court in relation to an appeal from the Federal Magistrates Court, and in my view it is that jurisdiction which Stone J was exercising.

5 It may be that the Registry should have refused to accept the document pursuant to Order 46 Rule 7A upon the basis that the lodging of an appeal in the face of a prohibition against bringing an appeal is an abuse of process, but the document was accepted and it is accepted by counsel for the Minister that it is too late to consider any possible invocation of Order 46 Rule 7A.

6 The Minister has lodged an objection to the competency of the appeal, but the powers which a single judge has in relation to the exercise of the appellate jurisdiction of the Court are as specified in s 25(2), and there is not included in that specification a power to dismiss an incompetent appeal. Ms Rayment could not refer me to any specific power which I have to deal with the matter although she said, and I agree, that it seems absurd that one should have to go to the Full Court to dispose of an incompetent appeal.

7 As I am not persuaded that I have any power to deal with the matter, it seems to me that the proper course is to refer the objection as to competency to a Full Court for its determination. If the Full Court agrees with the matters which I have just expressed it is not an application which it will take very long to deal with. The respondent is entitled to have some finality so far as the conduct of these proceedings is concerned, and what I propose to do is to refer the matter to the Registry with a view to making the necessary administrative arrangements for the matter to be listed in the February Full Court sittings. The parties will be advised of what arrangements the Registry has made in that respect.

8 The matter was listed before me today by an administrative direction of the Court rather than the making of an application by either party. In those circumstances, it seems to me that the costs of today’s proceedings should be costs in the proceedings as a whole.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Counsel for the Applicant:	J Azzi

Counsel for the Respondent:	B Rayment

Solicitor for the Respondent:	Sparke Helmore

Date of Hearing:	8 February 2005

Date of Judgment:	8 February 2005