ADQ15 v Minister for Immigration

[2015] FCCA 888

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADQ15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 888

Catchwords:
MIGRATION – PRACTICE AND PROCEDURE – Application for Recusal – duty of counsel and solicitors not to defy authority of court – application dismissed.

Johnson v Johnson (2000) 201 CLR 488 at 492-493

Applicant: ADQ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 612 of 2015

Judgment of: Judge Street

Hearing date: 9 April 2015

Date of Last Submission: 9 April 2015

Delivered at: Sydney

Delivered on: 9 April 2015

REPRESENTATION

Counsel for the Applicant: Mr D. Godwin

Solicitor for the Respondent:

Mr K. Eskerie

Sparke Helmore

ORDERS

1. Oral application for the court to recuse itself be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 612 of 2015

ADQ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this matter Mr Godwin, of counsel, appears for the applicant and has made an oral application for the court to recuse itself.  The application identifies at the First Court date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for future conduct of the proceedings. 

2. Mr Godwin was informed that the Court had looked at the application and was of the view the application failed to disclose an arguable jurisdictional error. 

3. Mr Godwin was informed the Court considered it appropriate to consider whether or not its summary powers should be exercised to dismiss the application.  Mr Godwin properly conceded that ground 3 was not arguable.  Ground 3 clearly is one in respect of which the Full Court has delivered a decision that makes it clear it has no substance. 

4. In relation to ground 1 the Court heard Mr Godwin articulate reasons as to why it was he asserted the ground was arguable.  Mr Godwin wished to take the Court to other material.  The Court was of the view that the material would not assist. The court was of the view that there was no substance in ground 1 and that Mr Godwin had not identified any arguable jurisdictional error in ground 1. The Court directed Mr Godwin to turn to the next argument in relation to ground 2.  Mr Godwin sought to continue talking over the Court seeking to continue to deal with ground 1 and the Court repeated the direction to  him to move on to ground 2.

5. It was in those circumstances of non-compliance by Mr Godwin of counsel with the direction of the court to move onto the next ground and his continuing to talk over the Court, that the Court directed Mr Godwin to sit down. 

6. Mr Godwin, once seated, was then informed that the Court has a busy list and that it is necessary for solicitors, counsel or parties to cooperate with the Court in dealing with the issues that are advanced. After this was said by the Court Mr Godwin made an oral application for the Court to recuse itself.  

7. This is not a case in which the above conduct that has occurred identifies any bias. The above conduct is not of a kind that a reasonable person might consider that this Court has not brought an impartial, independent mind to the determination of this matter on its merits, Johnson v Johnson (2000) 201 CLR 488 at 492-493.

8. Clear and concise presentation of succinct argument to identify the existence of any arguable jurisdictional error is something the court is entitled to expect of counsel and solicitors during a busy list in which, as in this case, the merits are the interlocutory issue of an arguable jurisdictional error.  

9. Mr Godwin’s continued tenacious pursuit of an unarguable ground in defiance of the authority of the direction of the court does not create a ground upon which the Court should recuse itself. There is a clear line between fearless advocacy and defiance of the authority of the court. Counsel and solicitors should be well aware of the distinction. Conduct in defiance of the authority of the court does not advance the rule of law. Counsel and solicitors, as servants of the rule of law and as officers of the court, should never cross that clear line.

10. There is no substance and the application for the Court to recuse itself.  It is in those circumstances that oral application for the Court to recuse itself is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  14 April 2015