Case: Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: cited
It is also well established and clear that in making an application for leave to appeal from such a judgment, the applicants must establish that the decision of Scarlett FM is 'attended by sufficient doubt to warrant its being reconsidered by the Full Court.' and must also demonstrate that 'substantial injustice' would result if leave were refused, supposing the decision to be wrong. The orthodoxy of those principles is established in Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 ( 'D&eacute;cor v Dart' ) and is confirmed in Ogawa v University of Melbourne (No. 2) (2004) FCA 1275. Of course, those principles are consistent with well established principles derived from Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 and also other authorities of the Federal Court of Australia. In examining the decision of Scarlett FM and the analytical exposed reasons published by his Honour in support of the orders, it is clear that his Honour turned his mind in considerable detail to the chronology of events, the principles to be applied in considering the application before him and the underlying merits of the contentions advanced by the appellant in relation to the proceedings before the Tribunal and the contended jurisdictional error on the part of the Tribunal. 10 His Honour looked at the circumstances that led the appellants to miss the hearing and considered the merits of the substantive application. His Honour observed that he would turn his mind to the issue of where there are no prospects of success in the substantive application , reinstatement would be futile and then weighed those considerations in the balance in making the order in question. The application for leave to appeal is not supported by a proper application nor any affidavit material in support of the application which would go to establishing the two essential matters prescribed by Decor v Dart . The only material before the court on the question is the contention recited in the proposed notice of appeal. In supporting the merits, if I can put it that way, of an argument of error of law on the part of Scarlett FM, the female appellant contended that before the Refugee Review Tribunal she could not understand what the Tribunal was talking about or perhaps understand more broadly the proceedings. 11 The appellant also says that she believes she would suffer persecution should she return to the People's Republic of China. Neither of these matters constitute demonstrated error on the part of Scarlett FM and accordingly there is no basis for concluding that his Honour's decision should be reconsidered by the Full Court. Moreover, having regard to his Honour's exposed set of reasons, there is no basis for concluding that substantial injustice would arise should leave not be given. The second limb, in any event, of course, is predicated upon the applicant/proposed appellants, demonstrating that the first limb is made out. Accordingly, the application must necessarily be dismissed and the notice of appeal must necessarily be dismissed. 12 In addition to a consideration of the substance of the application this morning, an application has been made for a direction that the title of the first respondent be changed to "Minister for Immigration and Citizenship" and I make that direction. I make an order that leave to appeal from the decision of Scarlett FM should be refused. I make an order striking out the notice of appeal filed on 18 December 2006 and I make a further order that the appellants pay the first respondent's costs of and incidental to the application. 13 I further order that the quantum of the costs payable by the applicant/appellants to the first respondent be fixed in the sum of $650.00. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 2 March 2007 Solicitor for the Appellant Appellant Self Represented Solicitor for the First Respondent: Clayton Utz Lawyers Date of Hearing: 2 March 2007 Date of Judgment: 2 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/293.html