Akpata v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1145
•19 AUGUST 2005
FEDERAL COURT OF AUSTRALIA
Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1145
PRACTICE AND PROCEDURE – application to relist matter – where an order pursuant to O 32 r 2(1)(d) of the Federal Court Rules that the trial proceed in circumstances where the applicants did not appear.
Federal Court Rules, O 32 r 2(1)(d)
STEPHEN OGHO AKPATA, FORTRESS AKPATA AND PRECIOUS AKPATA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SAD 84 of 2004
LANDER J
19 AUGUST 2005
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 84 OF 2004
BETWEEN:
STEPHEN OGHO AKPATA
FIRST APPLICANTFORTRESS AKPATA
SECOND APPLICANTPRECIOUS AKPATA
THIRD APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
LANDER J
DATE OF ORDER:
19 AUGUST 2005
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1. The application to relist this matter is dismissed.
2. The applicants to pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 84 OF 2004
BETWEEN:
STEPHEN OGHO AKPATA
FIRST APPLICANTFORTRESS AKPATA
SECOND APPLICANTPRECIOUS AKPATA
THIRD APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
LANDER J
DATE:
19 AUGUST 2005
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
This is an application by the applicants to relist their originating application for further hearing.
I had notified the parties that I intended to deliver judgment in these proceedings this morning. I delayed delivering judgment in view of this application.
The trial in this matter was first listed for hearing on Thursday, 9 June 2005.
On 3 June 2005 the Registry received a letter from the first applicant in the following terms:
‘I refer to the above matter and ask for an adjournment as the 9/6/05 is not convinent [sic] due to my circumstances.
You will recall this matter was set down for hearing on the 10/2/05 but was adjourned on the application of the respondent as the acquired counsel was not available on that date.
The Court faxed 1/6/05 for the matter but was adjourned by the Court due to the Judges [sic] schedule to 9.6.05.
However this date is not convinient [sic] as stated above and respectfully ask that it be adjourned.’
The first applicant provided no further details. He did not deign to advise why the hearing date was inconvenient. No good reason was given for the grant of an adjournment.
On 6 June 2005 my Associate wrote to the first applicant in a letter which was sent by registered mail in the following terms:
‘I advise that the Honourable Justice Lander has declined to adjourn this matter and confirm that it will remain listed for hearing at 1:00pm on Thursday 9 June 2005.’
I was not prepared, in the absence of any good reason, to adjourn the applicants’ application for judicial review. When the matter was called on the first applicant did not appear. Indeed, none of the applicants appeared.
After I reserved my decision I was informed that it was likely the first applicant did not receive my Associate’s letter of 6 June until 14 June 2005. In those circumstances, and in case the first applicant might have thought that the matter would not proceed on 9 June, the matter was re-listed for hearing on Wednesday 10 August 2005.
On 23 June 2005 my Associate wrote to the first applicant in the following terms:
‘I refer to my letter dated 6 June 2005, sent by registered mail, in which you were advised that the Honourable Justice Lander declined to adjourn this matter and that it remained listed for hearing on 9 June 2005.
Personal delivery of this letter was attempted by Australia Post on 8 June 2005, but it seems you were not at home and delivery was unable to be effected. From what I have been told by Australia Post, it appears that the letter was not picked up until after the hearing on 9 June 2005.
Whilst you have made no attempt to contact the Court as to why you were not present on 9 June 2005, the matter will be re-listed for further hearing at 1:00pm on Wednesday 10 August 2005, at which time you may put any argument in support of your application.’
On 25 July 2005 my Associate received a message from the Registry to the effect that the first applicant had requested a copy of the decision of the Full Court of this Court in Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65. The Registry also reported that the first applicant had advised that he wished to have the hearing of this matter stayed until some time after the High Court handed down its decision in another matter brought by the first applicant. On that same day, my Associate responded to the first applicant’s requests by a letter in the following terms:
‘I refer to a message received by our chambers today that suggests that you would like the hearing of the above matter stayed until some time after the High Court hands down its decision in another matter that relates to you.
I advise that if you wish to have the above proceedings stayed, you should make an application to do so to Justice Lander at the commencement of the hearing on Wednesday 10 August 2006 at 1:00pm.
As requested, I enclose a copy of the decision of the Full Court of the Federal Court of Australia in Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65.’
A copy of this letter was sent to the respondent’s solicitors. On 29 July 2005, the respondent wrote to my Associate in the following terms:
‘We refer to your letter to Mr Akpata dated 25 July 2005.
Thank you for sending a copy of this letter to us.
We advise that in our view the High Court proceedings to which Mr Akpata is referring (A16 of 2004) are in no way related to the present application before the Honourable Justice Lander. The High Court proceedings are an application for writs of certiorari, mandamus and prohibition in relation to a Delegate’s decision dated 7 November 1996 to refuse Mr Akpata a protection visa. The matter is before the High Court on 9 August 2005 to hear his application and the Minister’s application to strike those proceedings out.
We have written to Mr Akpata to advise that should he make an application to stay the Federal Court proceedings we will oppose this and file affidavit material supporting our contention that the two sets of proceedings are unrelated.’
Two days before the hearing, on 8 August 2005, the first applicant delivered a letter to the Registry which was addressed to me in the following terms:
‘I refer to the letter of your associate Ms Belinda Culshaw of 25 July 2005 and wish to point out the following.
1.I ask for a stay of the proceedings or an adjournment pending my High Court matter.
2.My matter comes on for hearing on Tuesday 9/8/05 and all my energy and focus has been in preparing my submissions.
3.I have been an in patient [sic] admitted into the mental clinic CRAMMOND CLINIC for about 2 weeks see attached letter to High Court.
4.I am unable to attend due to the fact that I will resume my medication after the High Court hearing and above all I do not have the energy or mental capacity to attend another hearing the following day. I therefore ask that you grant my request above.’
On 8 August 2005, my Associate responded to the first applicant’s letter which was delivered to the first applicant at his place of residence on the same day. She wrote:
‘I refer to your letter of even date which I understand you delivered to the Registry. In that letter you have again requested that the hearing of the above matter be stayed.
As mentioned in my letter of 25 July 2005, I advise that if you wish to apply to have the proceedings stayed, you should make an application to do so to Justice Lander at the commencement of the hearing on Wednesday 10 August 2005 at 1:00pm.’
On the morning of the hearing (10 August), my Associate received a message from the Registry to the effect that the first applicant was unable to attend at the hearing as he was feeling suicidal and had been administered medication that would result in him being asleep for the rest of the day. In light of the first applicant’s message, the Registry (of its own motion) organised for police and an ambulance to attend at his residence.
None of the applicants appeared at the hearing.
At the commencement of the hearing, Ms Maharaj, counsel for the respondent, informed me that the first applicant had spoken to her instructing solicitor, Ms Nash in similar terms to the communication to the Registry. Ms Maharaj also informed me that the first applicant had appeared before Hayne J in the High Court of Australia on the previous day, on 9 August 2005. She further indicated that the first applicant presented submissions for approximately 45 minutes to one hour and appeared competent in doing so at that hearing.
During the trial, my Associate received an e-mail, a copy of which she handed to me, reporting on the police and ambulance attendance at the first applicant’s residence. The message was in the following terms:
‘… Mr Akpata was seen by policem [sic] and ambulance personnel this morning at his home address. He stated according to police report that he had no intention of going to court as he did not like the prospects in court. They formed the opinion that he was attention seeking and he had no intention of doing away with himself.
He was left at his home address all in order.’I read the e-mail out in Court. The contents are included in the transcript of proceedings.
Ms Maharaj submitted that the first applicant had not presented any satisfactory evidence to establish the condition which he alleged resulted in his non-attendance. She applied, pursuant to O 32 r 2(1)(d) of the Federal Court Rules to proceed with the trial in the applicants’ absence.
The applicants had two opportunities to present their application. They did not appear. The first applicant was expressly told if he wished to seek a stay of these proceedings he should attend and apply at the hearing. He did not. The respondent was entitled to have this matter disposed of, especially where the application has no prospects of success. I therefore elected to proceed, for the second time, pursuant to O 32 r 2(1)(d), with the trial generally in the applicants’ absence.
At the conclusion of the hearing, I reserved my judgment and indicated that I would hand down my decision today unless any other application was made in the meantime.
On 11 August 2005, that is the day after the hearing, my Associate received a facsimile copy of a letter addressed to the first applicant from the respondent’s solicitors:
‘We refer to the hearing listed for Wednesday 10 August 2005 at 1:00pm and your non-attendance.
We note you telephoned our office on the morning of Wednesday 10 August to advise you were suicidal and not mentally competent to attend the hearing. You also said you had taken medication which would cause you to sleep for the next 10 hours. We understand you called the Registry of the Federal Court to advise the same.
It has however now come to our attention that you appeared in the Adelaide Magistrates Court at 2:15pm on Wednesday 10 August 2005. We attach a Certificate of Record evidencing this.
We confirm a copy of this letter and Certificate is being forwarded to the Associate to the Honourable Justice Lander.’
That same day, my Associate wrote to the first applicant in the following terms:
‘I refer to the hearing of the above matter, which, as you were advised in my letters of 25 July 2005 and 8 August 2005, took place on Wednesday 10 August 2005 at 1:00pm.
I note that prior to the commencement of the hearing, you left a message with the Federal Court Registry to the effect that you were unable to attend Court as you were feeling suicidal and had been administered medication that meant you would need to sleep for the rest of the day. In light of your message that you were contemplating suicide, the Registry organised for police and ambulance to attend at your residence.
At the commencement of your trial, counsel for the respondent, Ms Maharaj, informed the Court that you had communicated a similar message to that communicated to the Registry, to her instructing solicitor, Ms Nash.
Ms Maharaj also informed the Court that you appeared before the Honourable Justice Hayne in the High Court on the previous day, that is, on 9 August 2005. She indicated that you presented submissions for approximately forty-five minutes to one hour and appeared competent in so doing.
I note that during the trial, I received a message from the Registry, reporting on the police and ambulance attendance at your residence. The message was in the following terms:
“…Mr Akpata was seen by policem [sic] and ambulance personnel this morning at his home address. He stated according to police report that he had no intention of going to court as he did not like the prospects in court. They formed the opinion that he was attention seeking and he had no intention of doing away with himself.
He was left at his home address all in order.”Ms Maharaj submitted that you had not presented any satisfactory evidence to the Federal Court to establish the condition you alleged resulted in you being unable to attend on 10 August. Ms Maharaj then applied to proceed with the hearing pursuant to O 32 r 2(1)(d) of the Federal Court Rules.
The Honourable Justice Lander granted that application and the hearing proceeded. His Honour reserved his judgment and indicated that his decision would be handed down on Friday 19 August 2005, “unless any other application is made in the meantime”.
I attach a transcript of the hearing for your reference.
Please note that I have received a facsimiled copy of a letter addressed to you from the respondent’s solicitor of even date, advising that you appeared in the Adelaide Magistrates Court at 2:15pm on Wednesday 10 August 2005. That letter attached a Certificate of Record evidencing the fact of your appearance.’
On 12 August 2005 the first applicant filed this notice of motion in which he sought the following orders:
‘1.The matter be relisted for further hearing so as to put my submissions.
2.That his Honour further put on hold his judgment intended to be delivered on 19 August 2005 at 10.15 be put on hold.
3.That the respondent witness need to testify in court to give evidence in this matter.’
The first applicant filed an affidavit accompanying the affidavit, which provided:
‘1.That I confirm receipt of a letter dated 11/8/05 today 12/8/05 signed by Ms Belinda Calshaw [sic] Associate to the Hon Justice Landers [sic] and the transcript of the proceeding above.
2.That the police and [sic] nor the ambulance officers nor any other persons mentioned in the transcript and letter of the hearing are not mental health expert [sic] and can not therefore qualified [sic] as to whether I was or am in a balance [sic] mental state of mind.
3.That my appearance before the High Court does not prove that I was in a stable mental condition given that I have been recently admitted and detained in a mental hospital and the fact of I have spent 2 years in immigration detention and the stress and traumas.
4.That the police told me that I have to attend the Adelaide Magistrate [sic] Court at 2.15pm on the 10/8/05 or else a warrant will be issued for my arrest. They could not tell me why I have to attend because the [sic] did not know why. Because I did not have a court date for the 10/8/05 at the Adelaide Magistrate [sic] Court.
5.The matter was for the Magistrate just to sign papers and documents and the Magistrate can testify as to the stressful condition I was when I was in Court and it only took and lasted for 5 minutes only.
6.That I have questions to put before the respondent witnesses that are more vital to the out come [sic] of the proceedings.
7.Therefore given the above while conceding [sic] that I should have attended to put my case before his Hon. Justice Lander, the matter should be re-listed for a further hearing to enable me to put my submission to put the witness in the witness box.
8.That justice has to be done and must be seen to be done.’
The notice of motion was given the return date of 19 August 2005 at 10.15am, that is, the same date and time that I indicated I would deliver my judgment in the matter.
The first applicant read his own affidavit on the motion to relist the matter for further hearing. The respondent did not seek to cross-examine him on the contents of that affidavit.
The respondent read an affidavit of Elizabeth Mary Inglis, a solicitor in the employ of the respondent’s solicitors. She deposed to matters which had been put to me on the previous hearing from the Bar table. The first applicant did not seek to cross-examine her.
In particular, Ms Inglis said that the first applicant made submissions for approximately half an hour in the proceedings before Hayne J and, during that time, fielded questions from his Honour.
She also said that a solicitor attended at the Magistrates Court for the purpose of inspecting the file relating to the first applicant’s appearance in the Magistrates Court on 10 August 2005. She deposed that that solicitor was advised that an application needed to be made and, on 15 August 2005, an application was made to Mr Baldino SM for permission to inspect the file.
Mr Baldino SM made the following order:
‘With respect to files AMC-05-10766 and 10759, having regard to the application before me made on behalf of the Minister for Immigration and being satisfied that the Minister has a proper interest in the defendant charged in respect of the matter, I do hereby authorise the Minister through her servants and agents to inspect and if necessary copy any material appearing in respect of the said files provided such inspection and obtaining of material is subject to the same terms and conditions as the suppression provisions of s71A of the Evidence Act (SA).’
She exhibited copies of the files to her affidavit. They were enclosed in a sealed envelope. Mr Akpata consented to me reading those files. The matters with which he is charged are not relevant to this application or these proceedings. What is relevant is that he attended the Adelaide Magistrates Court on 10 August 2005 at 2.15pm and represented himself in that Court. Pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth), I suppressed from publication Exhibits EMI2 and EMI3 to Ms Inglis’ affidavit.
No satisfactory explanation was given by the first applicant for not attending the hearings on 9 June and 10 August. Indeed, no explanation at all was proffered in relation to his non-appearance on 9 June 2005.
A witness came from Canberra to be cross-examined on 9 June 2005. Another witness in Vietnam made herself ready to be cross-examined on that day. Mr Akpata did not indicate the subject matter of his cross-examination of these witnesses.
Mr Akpata appeared in the High Court the day before he was due to appear in this Court and the Magistrates Court on the same day that he was due to appear. I accept Ms Inglis’ evidence of her observations of Mr Akpata in the High Court. He was well enough to attend both those Courts and, in the case of the High Court, performed appropriately.
In relation to his non-attendance on 10 August, the first applicant said that the police and ambulance officers ‘are not mental health expert [sic] and can not therefore qualified [sic] as to whether I was or am in a balance [sic] mental state of mind’. The first applicant did not deny on oath that he told those officers that ‘he had no intention of going to court as he did not like the prospects in court’. He knew of that report because my Associate provided him with a copy of the transcript. He did say in his submissions to me that he did not say what he is reported to have said.
The first applicant had two opportunities to present his case but, for reasons best known to himself, has not done so.
I have formed the clear view that the first applicant well knows that he has no prospects of success on this application. However, he has deliberately taken steps to avoid the matter being heard and decided. Perhaps the currency of these proceedings means that the Minister cannot or will not exercise other powers which may result in his removal from Australia.
I am not prepared to relist the matter for a third hearing. In arriving at that decision I have taken into account the hopelessness of the applicants’ case.
The notice of motion is dismissed. The applicants must pay the respondent’s costs of the application.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 19 August 2005
Counsel for the Applicants: Mr S O Akpata appeared in person Counsel for the Respondent: Ms S Maharaj with Mr M Kennedy Solicitor for the Respondent: Sparke Helmore Date of Hearing: 10 August 2005 Date of Judgment: 19 August 2005
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