Leave to Appeal
64 In Samsung Electronics Co Ltd v Apple Inc (2011) 286 ALR 257 at [26]-[30] (pp 266-267), the Full Court said:
26 In this court, it is well established that the relevant test (or "litmus test") for whether leave to appeal from an interlocutory judgment will be granted, comprises the following two integers:
(1) whether, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and
(2) whether substantial injustice would result if leave were refused supposing the decision to be wrong.
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400; 104 ALR 621 at 622-4; 23 IPR 1 at 3-5 (Décor).
27 In Bienstein v Bienstein (2003) 195 ALR 225; 30 Fam LR 488; [2003] HCA 7 at [29] (Bienstein), McHugh, Kirby and Callinan JJ said that:
29 … The principles that govern the grant of leave to appeal are well established. An applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave. The applicant must also show that substantial injustice will result from a refusal of leave to appeal.
28 The test for leave to appeal explained by the High Court in Bienstein is the same test as the Full Court had earlier articulated in Décor.
29 As the Full Court itself said in Décor, the test which it described is appropriate for the general run of cases. The test should not, however, be applied as if it were some hard and fast rule. Each case must be considered on its merits.
30 In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564; [2000] FCA 1572, French J (as he then was) (with whom Beaumont and Finkelstein JJ agreed), when dealing with the principles which generally govern the grant of leave to appeal from an interlocutory decision in relation to a matter of practice and procedure, said (at [43]-[44]):
43 Artificial distinctions may be drawn because of the requirement that the Court looks to the legal rather than the practical effect of the order in question - Carr at 248 (Gibbs CJ) 256 (Mason J). But such artificiality as may arise can be overcome by a sensible exercise of the discretion to grant leave informed by the underlying policy of that requirement. Interlocutory orders cover a spectrum from those concerned solely with the mechanics of case management and pretrial preparation to those which may, for one reason or another, have a significant impact upon the scope and outcome of the proceedings. If the order, the subject of the application for leave to appeal, is concerned with the mechanics of the pretrial process then the scales are likely to be weighted against the grant of leave. However if while interlocutory in legal effect it has the practical operation of finally determining the rights of the parties "a prima facie case exists for granting leave to appeal" - Ex parte Bucknell (1936) 56 CLR 221 at 225; [1937] ALR 332 at 334; Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400; 104 ALR 621 at 624; 23 IPR 1 at 5; Minogue v Williams (2000) 60 ALD 366; [2000] FCA 125 at [18]. If a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory. However leave will usually be granted in such a case if there is any doubt about the decision at first instance - Little v Victoria [1998] 4 VR 596 at 598-600 and 601 (Callaway JA, Buchanan JA agreeing).
44 The Full Court in Minogue restated the two tests enunciated in Décor Corporation which have been developed to justify the grant of leave to appeal from an interlocutory order. The first is that the decision at first instance should be attended with sufficient doubt to warrant its reconsideration on appeal. The second is that substantial injustice would result if leave were refused. The present case is one in which the decisions in question have allowed causes of action to go forward which the respondents and other parties say are untenable and should be struck out. It was contended for BHP that, in so far as the decision of 3 March 2000 involves rejection of the contention that the s 52 claim is colourable and that the Court lacks accrued jurisdiction to deal with the common law claim, this was a decision that fully determined the rights of the parties and that leave to appeal was not required in respect of it. The "decisions referred to however were findings underlying an order, the relevant order being to allow the amendments to the statement of claim.
65 In Ex parte Bucknell (1936) 56 CLR 221 at 223-225, the High Court (Latham CJ and Rich, Dixon, Evatt and McTiernan JJ) considered the principles which should govern the grant of leave to appeal from an interlocutory judgment of a Supreme Court of a State or Territory pursuant to s 35(1) of the Judiciary Act 1903 (Cth). In particular, at 225, the Court said that, to give judgment on demurrer holding one of several pleas to be bad or to give leave to sign summary judgment, may well affect rights of sufficient value to justify leave to appeal. The Court also reinforced the proposition that, when an application for leave to appeal is under consideration, the Court will examine each case and, unless the circumstances are exceptional, it will not grant leave if it forms a clear opinion adverse to the success of the proposed appeal.
66 In the present case, the decision of the Federal Magistrate in respect of which leave to appeal is sought has the practical effect of determining on a final basis the applicant's claim for judicial review of the Tribunal's decision given on 21 October 2011. For this reason, it is necessary, in my view, for me to examine closely the applicant's prospects of success in the appeal, were I to grant leave to appeal as sought.
67 In his draft Notice of Appeal forming part of his Application for Leave to Appeal, the applicant articulated the following grounds of appeal:
Grounds of appeal
1. In considering whether the appellant had provided a satisfactory explanation for his failure to attend the hearing on 20 March 2012, the Federal Magistrate erred in taking into account an irrelevant consideration or irrelevant considerations.
Particulars
(1) At [15], the Federal Magistrate relied upon a finding at [10] that the appellant had not complied with a previous direction that required him to "notify the Court and the first respondent of any change of address for service or contact details immediately upon any such change". Given the explanation provided in the appellant's affidavits of 17 April 2012 and 23 April 2012, compliance with that direction of the Court would have made no difference to the Appellant's ability to attend the hearing on 20 March 2012. Further, there was no evidence the appellant was not contactable and the Federal Magistrate's reasons record the fact that the appellant did in fact contact Her Honour's associate prior to 20 March 2012.
(2) The Federal Magistrate relied upon a finding at [11] that, on his own evidence, the appellant knew at the time of the directions hearing on 14 February 2012 that he would be leaving Australia to go to Bangladesh but failed to inform his legal representatives of the same. However, in circumstances where the appellant had a legal representative who could appear for him at the final hearing, as at 14 February 2012 it was not necessary for the appellant to have provided instructions on his own availability to attend the hearing on 20 March 2012.
2. In exercising the Federal Magistrates Court's discretion under regulation 16.05 of the Federal Magistrates Court Rules, the Federal Magistrate applied the wrong test.
Particulars
(1) Although the Federal Magistrate held at [15] that she was not persuaded the excuse offered by the appellant was reasonable, in reaching this finding Her Honour at [2]-[3] and [11] referred to, and adopted, her reasoning of 20 March 2012 in Khondoker v Minister for Immigration & Anor [2012] FMCA 250 in terms that indicate she considered those matters equally applicable to the exercise of the Federal Magistrates Court's discretion under regulation 16.05.
(2) The Federal Magistrate placed primary emphasis on the appellant's willingness to prepare the matter for final hearing.
(3) Read together, paragraphs [11] and [15] of Her Honour's reasons indicate that the criteria for exercise of the discretion in regulation 16.05 were conflated with those relevant to consideration of the appellant's earlier application for adjournment considered on 20 March 2012.
3. On the evidence before the Federal Magistrate, it was not reasonably open for Her Honour to have found at [18]-[19] that, when the appellant became aware that he had ticked the wrong box on his visa application, he could have, but took no steps to, apply for a subclass 487 visa.
Particulars
(1) The Court Book included evidence that the acknowledgment letter referred to at [16] of the Federal Magistrate's reasons was never received by the appellant and returned to the first respondent undelivered.
(2) The Court Book included a copy of an email sent by the appellant to the first respondent's department on 21 August 2008, which noted that he had not received any acknowledgment letter.
(3) The Court Book included email correspondence commencing on 19 November 2008 which clearly disclosed that, when the appellant first realised he had ticked the wrong box on his application form, he sought to correct that mistake, was informed that he would have to lodge a new application and that the time for making such an application had expired.
4. In holding that the appellant had no reasonable prospects of success, the Federal Magistrate failed to consider a relevant consideration which was whether the appellant could succeed if allowed to amend his grounds of review.
Particulars
(1) It is clear from the transcript that, at the hearing on 24 Apri1 2012, the appellant's legal representative had only recently been briefed, had not been provided a copy of the first respondent's Court Book and required further time to properly formulate amended grounds of review.
(2) In considering whether the appellant had reasonable prospects of success, the Federal Magistrate was obliged to but did not consider whether amendment of the appellant's application could have raised an arguable case
5. The circumstances of the admission of the first respondent's evidence and/or the publication of the Federal Magistrate Court's Reasons for Judgment were capable of giving rise to a reasonable apprehension of bias.
Particulars
(1) In the course of giving extempore reasons for judgment, the Federal Magistrate paused and requested that the first respondent tender evidence in the form of his Court Book
(2) The ex tempore reasons for judgment of the Federal Magistrate given on 24 April 2012 were substantially revised in the Reasons for Judgment published on or about 3 May 2012, giving rise to the reasonable perception that on 24 April 2012 the Federal Magistrate's consideration of the evidence and the issues had not completed
68 Any appeal in this Court from her Honour's decision made on 24 April 2012 would be by way of rehearing. In order to succeed in such an appeal, the appellant would have to demonstrate that the judgment of the Federal Magistrate was infected with appellable error (Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[25] (pp 434-435) (per Allsop J)).
69 The power to set aside orders pursuant to reg 16.05 of the FMC rules is discretionary. A party seeking to set aside a judgment given in his or her absence is required to explain why he or she was absent and to demonstrate that he or she has some prospects of success in his or her case. This approach is reflected in the reasoning of Emmett J in Re Daskalovski; Ex parte The Austral Brick Co Pty Ltd [1998] FCA 782. In that case, Emmett J declined to set aside a sequestration order in circumstances where the bankrupt's estate had already been administered in bankruptcy. The basis for setting aside the order which Emmett J had under consideration was O 35 r 7 of the former Federal Court Rules. That rule was relevantly in substantially the same terms as reg 16.05 of the FMC rules.
70 When considering the applicant's prospects on appeal, upon the assumption that leave might be granted, it is not enough that this Court might have made a different decision had it been in the position of the primary judge (House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ). As Dixon, Evatt and McTiernan JJ said in House v The King at 505:
If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated.
See also Norbis v Norbis (1986) 161 CLR 513 at 518-519 per Mason and Deane JJ.
71 In later cases, Justices of the High Court have said that, in respect of appeals against decisions involving discretionary judgment, there is a strong presumption in favour of the correctness of the decision appealed from and that that decision should be affirmed unless the appeal court is satisfied that it is clearly wrong (see Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 at 627 per Kitto J; and Mallet v Mallet (1984) 156 CLR 605 at 634 per Wilson J).
72 I now turn to consider the applicant's putative grounds of appeal.