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[2000] FCA 1612
Federal Court of Australia
2000-11-01
Madgwick J, Lehane J, Woodward J, Sweeney JJ, Marshall J
Original judgment source is linked above.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall J.
Dated: 10 November 2000 Counsel for the Applicant: Mr T Hurley
Counsel for the Respondent: Mr R Tracey QC with Ms H Symon
Solicitor for the Respondent: Australian Government Solicitor
Date of Judgment: 1 November 2000 (ex-tempore, as revised from the transcript)
Madafferi
Minister for Immigration & Multicultural Affairs
REASONS FOR JUDGMENT 1 In this matter I am satisfied that the Court has the jurisdiction pursuant to s482(2) of the Migration Act 1958 (Cth) ("the Act") to grant a stay of the Minister's decision. I consider that the construction of the words "securing the effectiveness of the hearing and determination of the appeal" favoured by Madgwick J in Ooi v Minister for Immigration and Multicultural Affairs [2000] FCA 514, especially at [16] and [17], is one which is not clearly wrong. It is a construction that I consider that I am, having formed that view, bound to follow. I pause then to consider the test for the granting of an interlocutory injunction in the circumstances. The Minister contends that there is no serious issue to be tried in this matter by reference to the judgment of Lehane J in Lam v Minister for Immigration & Multicultural Affairs [2000] FCA 1226. 2 Counsel have put competing submissions on the meaning of that judgment. It has been urged upon me on behalf of the Minister that consistent with his Honour's judgment I ought to form the view that there is no serious issue to be tried in this matter. On the other hand, counsel for the applicant submitted that the approach taken by Lehane J is one that should not be taken. However, at [25] of the judgment in Lam, Lehane J said: "The question is not easy and is one on which minds might differ." 3 Whatever might be my final view of the matter, I consider, at least at this stage, the contrary view to that accepted by Lehane J to be arguable. 4 In Bullock v The Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464 at 472, Woodward J, with whom Smithers and Sweeney JJ agreed, said the following in respect to the test for interlocutory injunctions: "The only point I wish to add for myself is that, when it becomes necessary to consider the balance of convenience, it is, I believe, quite proper to bear in mind the apparent strength of the applicants' case; the two legs of the test need not be considered in isolation from each other. Thus an apparently strong claim may lead a court more readily to grant an injunction where the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious issue to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it."
(1985) 5 FCR 464