3.1 Relevant principles
29 As the Minister submitted, in determining whether or not to grant leave to appeal, relevant factors include whether the decision of the Federal Circuit Court is attended by sufficient doubt to warrant reconsideration and, if it is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In this regard, the power exercised by the Federal Circuit Court in dismissing the reinstatement application under r 16.05(2) of the FCC Rules was discretionary. As such, it would be necessary for the applicant to demonstrate that the primary judge made an error of the kind identified in House v R (1936) 55 CLR 499 at 505 in the exercise of discretion, namely that the primary judge acted upon a wrong principle, was guided by extraneous or irrelevant matters, ignored relevant or matters, made a mistake of fact, or that the discretionary decision is unreasonable or plainly unjust.
30 In this regard the principles which govern the exercise of power under rule 16.05(2) of the FCC Rules were identified by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]:
In circumstances where, as in the present case, a proceeding has been dismissed in a party's absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a) whether there was a reasonable excuse for the party's absence from the hearing in which the proceeding was struck out;
(b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c) whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.
(emphasis in the original.)
31 The principles governing the discretion whether or not to reinstate a proceeding are not, therefore, identical to those relevant to the grant of leave to appeal. Nonetheless, I do not consider that the application of those requirements would lead to any different result in this case. Specifically, I do not consider that there is a reasonably arguable case that the primary judge erred in finding that the substantive grounds of judicial review in the dismissed proceeding could not succeed if the proceedings were reinstated; nor do I consider that the further proposed grounds raise a reasonably arguable point.