Case: D&eacute;cor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: cited
appeal to this Court from an interlocutory decision of the Federal Magistrates Court requires leave: Federal Court of Australia Act 1976 (Cth) s 24(1A). Considerations relevant to the exercise of that discretion are ( D&eacute;cor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 398 to 399, per Sheppard, Burchett and Heerey JJ): No Application seeking leave has been filed in this Court. The proceeding in this Court was commenced by a purported Notice of Appeal as filed on 24 December 2008. In accordance with Directions given by the Registrar on 14 January 2009, the purported appeal has been treated as an Application for leave to appeal and the Notice of Appeal as a draft of the Notice that would be filed if leave were granted. The handwritten Grounds of Appeal set forth as follows (without alteration): The single judge of the Federal Magistrate Court in His Honours judgement delivered on ... failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiccery Act 1903. The learned Federal Magistrate has dismissed my application without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. A written Outline of Submissions has, however, been filed by the Applicant. That outline seeks to advance the following contentions (without alteration): 1. His Honours should have found that the Tribunal failed to appropriately deal with the documents in particular the inference that the documents are fabricated thus breaching section 424A. Particulars The Tribunal inferred that the documents that the applicant's submitted were fabrication. The Tribunal has not given the applicant an opportunity in the section 424A letter to deal with the claim raised by the Appellant. His Honours should have found that the Tribunal erred by not allowing the appellant to explain the documents and rebut any inference of fabrication breaching section 425 of the Migration Act . Particulars The Tribunal has drawn an inference that the independent country information about the prevalence of document fraud in Bangladesh, yet the appellant was not given the opportunity to rebut this inference. Notwithstanding the form of the document filed, it is in effect an application to amend what has been treated as a draft Notice of Appeal . The Applicant appeared before the Court unrepresented, although he did have the benefit of an interpreter. He accepted that the argument set forth in his written Outline of Submissions had not been advanced before the Federal Magistrate. The explanation provided was that the prospect of raising that argument was only raised by a " friend " in conversation subsequent to the hearing conducted by the Federal Magistrates Court. Notwithstanding considerable reservation, it is considered that leave to appeal should be refused. Reservation is occasioned by the manner in which the Federal Magistrate has expressed his reasons for decision. Those reasons occupy some nine pages &#8212; of those nine pages, over two pages set out verbatim the submissions of the Minister as to the relevant " background "; one page sets out verbatim the grounds of the Amended Application ; and a further two pages adopt and set out verbatim the Minister's written submissions on substantive issues. The balance of the judgment &#8212; some four pages &#8212; sets out the reasons as expressed by the Federal Magistrate.