NBDW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 24 (23 February 2005)

Last Updated: 1 March 2005

FEDERAL COURT OF AUSTRALIA

NBDW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 24

PRACTICE AND PROCEDURE - appeal - judgment of the court constituted by a single judge exercising the appellate jurisdiction - appeal from a decision of a single judge dismissing application for extension of time to seek leave to appeal



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



Marchant v GB Radio [2002] FCA 465 referred to
Wati v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 543 applied

















NBDW V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1852/2004


WEINBERG, JACOBSON AND LANDER JJ
23 FEBRUARY 2005
SYDNEY

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

BETWEEN:	NBDW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WEINBERG, JACOBSON & LANDER JJ
DATE OF ORDER:	23 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The appeal be dismissed as incompetent.
2.	The appellant pay the respondent’s costs of the appeal and of the Notice of Objection to Competency.

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 1852 of 2004

BETWEEN:	NBDW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WEINBERG, JACOBSON & LANDER JJ
DATE:	23 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 On 13 December 2004 the appellant filed in the court a document styled Notice of Appeal. The decision which was stated in the notice to be the subject of the appeal was a decision of Stone J given on 23 November 2004, see [2004] FCA 1526.

2 On that date her Honour dismissed an application for an extension of time to seek leave to appeal from a decision of a Federal Magistrate who, on 23 August 2004, summarily dismissed an application for judicial review of a decision of the Refugee Review Tribunal. The Federal Magistrate dismissed the application pursuant to the rules of the Federal Magistrates Court for failure on the part of the present appellant to comply with an order of the court.

3 The objection to competency came on for hearing before Hely J on 8 February 2005, see [2005] FCA 63. His Honour observed that under section 24(1AAA) of the Federal Court Act 1976 (Cth) ("the Act") 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.

4 Hely J was of the view, which is plainly correct, that Stone J was exercising the appellate jurisdiction of the court in relation to an appeal from the Federal Magistrates Court so that the effect of section 24(1AAA) was that the purported appeal was incompetent. However, his Honour considered that he did not have power to deal with the objection to competency which did not fall within his powers specified in section 25(2) of the Act, cf Marchant v GB Radio [2002] FCA 465.

5 The appellant sought an adjournment of the hearing of today's application. His grounds were set out in a letter dated 17 February 2005. In it the appellant stated that counsel briefed originally is no longer available. He requested additional time to consider whether to approach another barrister or to run the appeal himself.

6 There was further argument this afternoon about the adjournment but the court refused the application to adjourn the hearing for reasons stated by the presiding judge. In our view the appeal is so plainly incompetent that it would have been pointless to adjourn the hearing. The words of section 24(1AAA) of the Act are clear and have direct application to the present proceeding.

7 Indeed, there is a second reason why the appeal is incompetent. The effect of section 24(1A) and 25(2) of the Act is that no appeal lies from a decision of a single judge dismissing an application for an extension of time to seek leave to appeal except by special leave to the High Court, see Wati v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 543 and in particular the authorities referred to at 548.

8 The orders of the court will be as follows:

i. The appeal be dismissed as incompetent.

ii. The appellant pay the costs of the purported appeal and the notice of objection to competency.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg, Jacobson & Lander JJ.

Associate:

Dated: 28 February 2005

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Ms Rayment
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	23 February 2005
Date of Judgment:	23 February 2005