Anthony Mansour v Honourable Nick Bolkus, Minister for Immigration and Ethnic Affairs
[1998] FCA 1495
•1 MAY 1998
FEDERAL COURT OF AUSTRALIA
Migration Act 1958 (Cth) - ss 479, 480, 485(1)
Judiciary Act 1903 (Cth) - s 39B
Federal Court Rules - O 46 r 7A
Commissioner for Railways v Small (1938) 38 SR(NSW) - referred to
ANTHONY MANSOUR v THE HONOURABLE NICK BOLKUS MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and AI LI XIAO
NG 107 of 1995
ANTHONY MANSOUR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 8259 of 1997
FOSTER J 1 MAY 98 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 107 of 1995
BETWEEN:
ANTHONY MANSOUR
APPLICANTAND:
THE HONOURABLE NICK BOLKUS
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
FIRST RESPONDENTAI LI XIAO
SECOND RESPONDENT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 8259 of 1997
BETWEEN:
ANTHONY MANSOUR
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
FOSTER J
DATE OF ORDER:
1 MAY 98
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
Leave to file the subpoena received in the Registry on 30 April 1998 and entitled in NG 107 of 1995 and NG 8259 of 1997 be refused pursuant to O 46 r 7A of the Federal Court Rules.
Leave to appeal the Court’s decision in respect of Order 1 above be refused.
The notice of motion filed in NG 107 of 1995 as related to NG 8259 of 1997 on 28 April 1998 which commences “ An order the applicant be Granted leave and Junction relief adequate and as required to manage these Proceedings before the Court according to the circumstances of the Court, according to the circumstances of the applicant and the circumstances of the Proceedings.…” be dismissed.
The notice of motion filed in NG 107 of 1995 as related to NG 8259 of 1997 on 28 April 1998 which commences “An order that the applicants notice of motion filed on the 27th of February 1998, that was decided on behalf of the applicant and set to be heard on the 1st of May 1998 by Justice Foster. J be vocated [sic] …” be dismissed.
The notice of motion filed in NG 107 of 1995 and NG 8259 of 1997 on 20 April 1998, time-stamped at 9.22 am, which commences “An order that the return of Subpoena that came before registrar Hedge on the 18th of March 1998 and the leave granted to the Government solicitor M’s Mary Hawkins to file a notice of motion and affidavitt [sic] to strike out the applicants Subpoena filed on the 6th March 1998 …” be dismissed.
The notice of motion filed in NG 107 of 1995 as related to NG 8259 of 1997 on 28 April 1998 which commences “An order that the applicants notice of motion filed on …. to strike out the Goverment [sic] solicitor Mr M. Muarry notice of motion filed on the 30.3.98 to strike out the applicants Subpoena filed on 6.3.98…” be dismissed.
Leave to appeal from the interlocutory judgment of Foster J given on 20 April 1998 be refused.
The notice of motion filed in NG 107 of 1995 as related to NG 8259 of 1997 on 28 April 1998 which commences “An Order that the applicants notice of motion filed on 9th Dcember [sic] 1997 set to be heard on the 1st of May 1998 and the two Orders within to be be heard separately on diferent [sic] dates, and the 1.5.98 hearing for these motions to be adjerned genrally [sic]…” be dismissed.
9,The notice of motion filed in NG 107 of 1995 and NG 8259 of 1997 on 20 April 1998, time-stamped at 16:54, which commences “An order that the notice of motion and affidavit filed om the 27th of February 1998, that was listed for directions hearing before Justice Davies on the 16th of April 1998 …” be dismissed.
The notice of motion filed in NG 107 of 1995 and NG 8259 of 1997 on 20 April 1998, time-stamped at 16:54, which commences “An order that the this [sic] notice of motion to be relistered [sic] before Justice Davies …” be dismissed.
The notice of motion filed on 24 April 1998 in NG 107 of 1995 which commences “An order that the tapplicant [sic] requests that this notice of motion to be relistered [sic] before Justice Foster. J for directions hearing …” be dismissed.
The notice of motion filed on 24 April 1998 in NG 107 of 1995 as related to NG 8259 of 1997 which commences “An order that the leave Granted to the Government solicitor M’S Mary Hawkins to file notice of motion and affidavitt [sic] on the 18.3.98 …” be dismissed.
The notice of motion filed on 2 December 1997 in NG 107 of 1995 as related to NG 8259 of 1997 which commences “ An order of that [sic] the Order made in Proceedings File NO G 107 1995 that on the 14.11.of 1995 that the applicant Pay cost to the first respondent be set aside …” be dismissed.
The notice of motion filed on 27 February 1998 in NG 107 of 1995 be dismissed.
The notice of motion filed on 9 December 1997 in NG 8259 of 1997 in connection with related motions, being one filed in NG 8259 of 1997 on 27 November 1997 and another filed in NG 107 of 1995 on 2 December 1997 which commences “An order of that the hearing for Bankruptcy Proceedings set for the 2nd Dec 1997 be vacated and stayed …”, be dismissed.
A Registrar consider, in respect of any further document sought to be filed by the applicant in the Registry in any proceeding, whether the provisions of O 46 r 7A of the Federal Court Rules should be applied to it.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 107 of 1995
BETWEEN:
ANTHONY MANSOUR
APPLICANTAND:
THE HONOURABLE NICK BOLKUS
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
FIRST RESPONDENTAI LI XIAO
SECOND RESPONDENT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 8259 of 1997
BETWEEN:
ANTHONY MANSOUR
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
FOSTER J
DATE:
1 MAY 98
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(Extempore)
FORWARD
The reasons for decision which follow were made throughout the course of the hearing on 1 May 1998. Where the reasons for an order comprised a lengthy statement which was transcribed as a judgment, it is presented as such. Other reasons for orders are presented as excerpts from the transcript which provide the content of the reasons for decision.
REASONS FOR ORDER 1
I am satisfied that on 30 April 1998, the applicant, Mr Mansour, attended the Registry of this Court and requested to file a subpoena. The subpoena was considered pursuant to O 46 r 7A of the Federal Court Rules and referred to me by the Registrar. I gave a direction pursuant to that reference that the subpoena should not be filed without the leave of a judge first had and obtained and such leave should be sought from myself today. I should add that today’s date being 1 May 1998 is a date selected approximately two months ago for the hearing of matters brought by Mr Mansour. Accordingly, I regard this subpoena sought to be filed yesterday as being before me today on the basis that leave is being sought for its filing.
On 20 April 1998 I had before me an application by the Department of Immigration to set aside a subpoena filed by the applicant. I gave judgment on that day in which I gave reasons for the striking out of that subpoena. That subpoena had been sought to be filed in respect of the two substantive matters which have been adjourned for hearing before me today being number NG 107 of 1995 and NG 8259 of 1997. It had been issued only in respect of NG 8259 of 1997 apparently as a result of the Registry accepting the subpoena only in respect of the one matter. However, the argument before me on that occasion ranged over both matters and related to the appropriateness of the subpoena for the gathering of information in relation to those matters.
I said in the reasons which I gave on that occasion:
“The subpoena which has been issued by the applicant has been issued in relation to application NG 8259 of 1997. I am prepared, however, to assume from what has been put to me by the applicant, that it relates also to the proceedings in NG 107 of 1995 which he originally brought before Davies J and which he seeks to have reinstated. The subpoena is quite clearly oppressive, the documents sought both ill-defined and numerous, and they have already, apparently, been the subject of a search in the Department of Immigration. An affidavit filed today indicates to me the extent of the search and the extraordinary difficulty that has been imposed upon the Department in attempting to seek out documents which might conceivably answer the wide descriptions which are given.”
I went on to say that the subpoena was clearly in breach of the principles laid down in Commissioner for Railways v Small (1938) 38 SR(NSW) and I shall not stay to read out that part of my judgment.
The subpoena with which I am dealing today is, so far as I can see, identical in form with the subpoena with which I dealt on 20 April. It is entitled in both NG 107 of 1995 and NG 8259 of 1997. Mr Mansour, in so far as I have been able to apprehend his submissions, has said that he has been in doubt as to whether he has issued a subpoena in NG 107 of 1995 and that, as I apprehend it, is the basis upon which he says the subpoena should be permitted to be filed.
Quite apart from the fact that I dealt clearly enough with its appropriateness for issue in respect of NG 107 of 1995 on the last occasion, I need to consider in this leave application whether, even if the subpoena is regarded as a fresh subpoena in relation to those proceedings, it could possibly be accepted by the court on the basis that leave was granted.
The subpoena is in exactly the same form. It is subject to exactly the same strictures that I made in respect of it in the previous proceedings. I am unable to accept that Mr Mansour was unaware that it was in the same form and that it had not been subject to the previous decision.
In my view the attempt made yesterday to file the subpoena was nothing more than an abuse of the process of the court. It was clearly unacceptable for the reasons that I had previously given and cannot be accepted as a subpoena for the reasons that I gave on the previous occasion. Accordingly, I refuse leave for it to be filed.
REASONS FOR ORDER 2
MR MANSOUR: I hereby make an oral application your Honour that I appeal your decision today to dismiss that subpoena.
HIS HONOUR: Well it is an application that the matter go before a court of three judges.
MR MANSOUR: The subpoena no, your Honour not three judges.
HIS HONOUR: Well that is what you are asking me to do.
MR MANSOUR: No your Honour. This is the subpoena that is identical to the first one.
HIS HONOUR: Yes I know what you are saying. You want to appeal from the decision I have just given.
MR MANSOUR: Yes your Honour.
HIS HONOUR: Well you have to have leave to appeal from it. It is an intellectual [interlocutory] matter. Do you understand if I were to grant leave the matter would have to go before three judges.
MR MANSOUR: But interlocutory your Honour.
HIS HONOUR: No, you have to go before three judges if I grant leave. Do you understand that?
MR MANSOUR: Does an interlocutory matter have to go before three judges your Honour?
HIS HONOUR: Yes if leave is granted.
MR MANSOUR: How could I apologise about this, from the notice that I have read it can go under one judge.
HIS HONOUR: And the application for leave to appeal can go before one judge. The actual hearing of the appeal if leave is given goes before three judges, is that what you want?
MR MANSOUR: Yes your Honour, I appeal that application until I otherwise advise the court.
HIS HONOUR: Well I do not propose to give you leave to appeal. So that disposes of that.
REASONS FOR ORDER 3
Next I am dealing with a notice of motion dated 28 April 1998 which commences “An Order that the applicant be Granted leave and Junction relief...” The Court cannot possibly make the orders sought in this notice of motion nor do I find that the orders are supported in any intelligible way. The notice of motion is dismissed.
REASONS FOR ORDER 4
The next notice of motion is one also taken out on 28 April 1998. It commences, “An order that the applicants notice of motion filed on the 27th of February 1998, that was decided on behalf of the applicant and set to be heard on the 1st of May 1998 by Justice Foster. J be vocated [sic]…”.
MR MANSOUR: And all I am saying here, your Honour, is that I have addressed a notice of motion to a judge, to a particular court and I request that this notice of motion goes to that judge in that court, whatever happens, however happens. But I am asking your Honour that the matter be vacated from before yourself because it will be a lot easier for me in the proceedings because Davies J knows all about the matter. But, your Honour, all I am asking is that it be vacated from before yourself and then automatically it has to go before Davies J.
HIS HONOUR: Well, that is not so, it does not automatically [go] before him and his Honour is not available in any event to hear it. This matter, apparently was allocated to me and that is the situation that is before me and I have to deal with it. So I cannot make that order.
MR MANSOUR: But, your Honour, he is the original docket judge for - - -
HIS HONOUR: Well, it maybe so but I cannot make the order, it has been allocated to my docket. Just take it from me, I cannot make that order.
MR MANSOUR: Yes, your Honour. But you see - - -
HIS HONOUR: And I am not going to make it so let us not beat the air.
MR MANSOUR: Okay. But what happens, your Honour, what happens when an application that an applicant makes to a court, addressed to, and yourself, you said - - -
HIS HONOUR: Well, the applicant does not have the right to apply to a particular judge. The court determines which judge will hear it and that is what has happened here.
MR MANSOUR: Yes, your Honour. But this is on the basis that he is the docket judge. He is the judge that knows more about the case.
HIS HONOUR: He is not the docket judge.
MR MANSOUR: Sorry?
HIS HONOUR: He is not the docket judge.
MR MANSOUR: Your Honour, he knows all about the case.
HIS HONOUR: Look, he may do but he is not the docket judge. I mean, we just cannot go on and on like this forever. This notice of motion apparently is directed to my sending matters to Davies J that are currently before me. Well, I am not going to do that and this notice of motion will just have to be dismissed.
REASONS FOR ORDER 5
HIS HONOUR: … There is a notice of motion that was taken out on 20 April.
MR MANSOUR: I am sorry, your Honour, I am going - - -
HIS HONOUR: Well, I have already dealt with this one. This was before me in the last occasion, was it not? It starts off, “An order that the return of subpoena that came before Registrar Hedge on 18 March”. I am fairly confident that that was before me on the last occasion.
MR MURRAY: Insofar that you dealt with the subpoena, your Honour.
MR MANSOUR: Your Honour, I think the file and notice of motion that I have got here with me to go back before Registrar Hedge under application - - -
HIS HONOUR: Well, Mr Mansour, this all relates to the subpoena which I struck out on 28 April. It all relates to that.
MR MANSOUR: That is right, your Honour, and something happened that was not correct about it. And I am asking the court to look into it. Whatever happens about the subpoena, your Honour, I am asking the court just to look into it.
HIS HONOUR: Look into what?
MR MANSOUR: Look into how everything took place.
HIS HONOUR: Well, it has taken place now. It is over and done with.
MR MANSOUR: Yes, your Honour, but I am requesting that the principle of the matter was not correctly or properly or firmly dealt with. And I am requesting that it be looked at.
HIS HONOUR: Well, by whom?
MR MANSOUR: By the Registrar under section - I am not sure how to describe it, your Honour, under paragraph 31, maybe subsection (1) or something like that. I will find that.
HIS HONOUR: Well, I think I have dealt with this already. This is one of the ones I deal with at the conclusion of the judgment, I have.
MR MANSOUR: I have not filed this one as yet.
HIS HONOUR: It was filed on 20 April. This is the one I am referring to.
MR MANSOUR: No, no, no, your Honour. This one is plain paper, I have not filed it as yet, your Honour.
HIS HONOUR: Well, if you have not filed it, I am certainly not going to deal with it.
MR MANSOUR: I am just saying that I am intending to file that, that is all I was saying, your Honour.
HIS HONOUR: Well, it is not currently before me today.
MR MANSOUR: No, your Honour, no. And it is not meant to come before you, your Honour.
HIS HONOUR: I do not want to deal with something I have not got before me.
MR MANSOUR: No, I do not know how that came up.
HIS HONOUR: All right then. There is a notice of motion which has been numbered 3, as I understood it, was one that you wanted to deal with today. As I see it, that has already been dealt with and already dismissed. And insofar as it has not been already dismissed, I will dismiss it.
REASONS FOR ORDER 6
HIS HONOUR: Well, I will help you. It is a notice of motion filed on 28 April in which you seek an order that the applicant’s notice of motion filed on something or other, to strike out the Government Solicitor, Mr Murray’s notice of motion, to strike out the applicant’s subpoena, be re-listed for directions. Now, that is a reference to the matter I have already decided.
MR MANSOUR: Yes, 28 April your Honour.
HIS HONOUR: Well have we got that?
MR MANSOUR: Yes your Honour.
HIS HONOUR: Well that is just simply a request that the matter that has already been dealt with be relisted for a directions hearing.
MR MANSOUR: Yes I am asking the court to look into how it happened your Honour, and it is more than within the rules. Possibly this notice of motion relates to the one I am going to file. But the one that I intend to file - - -
HIS HONOUR: I do not think we need to know about that. I need to do all of these ones that are here.
MR MANSOUR: Okay your Honour. So I cannot have the court look into the matter on how any error happened, took place?
HIS HONOUR: You can appeal.
MR MANSOUR: It happened before a registrar your Honour.
HIS HONOUR: No, I am not talking about this. I am talking about the notice of motion on 28 April which starts off with an order that the applicant's notice of motion to strike out the Government Solicitor’s notice of motion and so on. Have you got that document?
MR MANSOUR: Yes, your Honour.
HIS HONOUR: That is what I am talking about.
MR MANSOUR: Yes. Yes, I am appealing that, your Honour. I have got the notice of motion for it here and filed as well.
HIS HONOUR: Well then you do not want this order; you are appealing?
MR MANSOUR: True.
HIS HONOUR: In any event it is not an order I would be prepared to make.
MR MANSOUR: Your Honour, what has happened is this here possibly - your Honour, I do want that order and I intend and I see before you to have the matter relisted first because I was unable to make the appropriate replies and I was not ready for the hearing. There were lots and lots and lots of reasons, your Honour. There are things that I feel I could have discussed that could have been - the situation could have been assisted and if the subpoena is too big I could have explained why and then if it was decided that okay they cannot all happen at once then I will not put them in all at once.
HIS HONOUR: But that matter has already been disposed of and I do not propose to reopen it.
MR MANSOUR: But, your Honour, I make an application.
HIS HONOUR: Well I understand you make the application but I am refusing it. And the second order that you seek in that notice of motion is in the same category. You are seeking to reopen a matter which I have already decided and I refuse this notice of motion; will you get on with the next one.
MR MANSOUR: Your Honour, so would you actually say that proceedings can actually be heard and dismissed without a subpoena that is intended to be used for defence?
HIS HONOUR: The application that I am referring to is the application to strike out the subpoena that has been disposed of and I am saying I do not propose to reopen it, so that notice of motion is dismissed.
REASONS FOR ORDER 7
HIS HONOUR: Are you seeking leave to appeal from the judgment that I gave against you in respect of the subpoena on 20 April?
MR MANSOUR: Yes, your Honour.
HIS HONOUR: Well do you understand, because I want to be clear, do you understand that if I give leave for you to appeal then the matter will be heard by three judges, if I give you the leave?
MR MANSOUR: Yes, I understand that, your Honour.
HIS HONOUR: Well are you asking for leave or not?
MR MANSOUR: Yes, your Honour, I am asking for leave to appeal.
HIS HONOUR: That is, you want leave to appeal from the judgment I gave in respect of the subpoena?
MR MANSOUR: Yes, your Honour, but at the same time, your Honour, at the same time as asking for leave to appeal I am asking again, and I am sorry again and again I have just got to keep asking, that the situation be considered. I cannot go to an appeal empty handed. I have got to make preparations - - -
HIS HONOUR: I do not know whether you are asking for leave to appeal.
MR MANSOUR: Yes, your Honour, I am, yes, your Honour.
HIS HONOUR: Well, then I will consider that now and I will consider it on the basis of whether the time of the court should be taken up, and it is the time of three judges of the court, in determining an appeal from the judgment I gave in respect of the subpoena. The judgment I gave in respect of the subpoena was (1) striking out of the subpoena on the basis that it did not comply with any of the principles relating to subpoenas. In my view it would not be appropriate to grant leave from that judgment and thereby involve the court in what I would regard as being a waste of time hearing such an appeal. Leave is refused.
REASONS FOR ORDER 8
HIS HONOUR: This notice of motion filed on 28 April 1998 is for an adjournment of the two substantive matters that were adjourned for hearing to this date on a date some two months ago. On that occasion the matters were stood over for two months so that the applicant might try to find legal representation. As I have already indicated I am not satisfied the applicant has made any attempt to do so and I entertain some doubt as to whether he intended to at the time that he said he did. The Court emphasised and it has been particularly noted that the applicant should be ready to hear the two notices of motion even if he does not have legal representation. In these circumstances it would be a travesty if I were to adjourn these matters once again and that notice of motion is refused.
REASONS FOR ORDERS 9 AND 10
HIS HONOUR: I thought we had come to the end of the notices of motion that precede the substantive ones but it is brought to my attention that - I do not know what you think you are doing with these notices of motion. There is one here of 20 April which is for an order that this notice of motion be re-listed before Davies J, I do not know what you are referring to.
MR MANSOUR: Your Honour, I am sorry, you lost me there.
HIS HONOUR: Well, you have filed these documents. You have taken up the court’s time in filing them, they are all here.
MR MANSOUR: You might notice, your Honour, that was the day of your hearing of the matter but the time recorded on the back is that he filed them that afternoon after the hearing.
HIS HONOUR: Well, the first one apparently, I do not know what it is, to tell you the truth. They do not make any sense, Mr Mansour, and I am afraid I have got to tell you.
MR MANSOUR: Which one is that, your Honour, you might as well identify them.
HIS HONOUR: This notice of motion be re-listed before Davies J, this was filed on 20 April apparently after I gave judgment.
MR MURRAY: I think it is obvious that they tend to cross-over with each other, your Honour, to the extent that you have already dealt with these issues, they might be readily disposed of.
MR MANSOUR: Yes, what has happened, your Honour, is when on the transcript you said that the notice of motion was addressed to Davies J, it has got to go before Davies J, I then put on – that was all right, but then when I received the letter saying that the matter is coming before you then I put on another notice of motion saying it to go back before Davies J, that is why I used more than one notice of motion.
Anyway, all you have to do is cite them, it will come clear.
HIS HONOUR: I am looking through them.
MR MANSOUR: Sorry, your Honour.
HIS HONOUR: I am looking through them now, they are all stapled together. Yes, well there are two notices of motion filed on 20 April, the matters raised in those notices of motion have already been dealt with by me.
MR MANSOUR: That is to refer the matter to Davies J, your Honour.
HIS HONOUR: Yes, it has already been dealt with, with both of those already dismissed.
REASONS FOR ORDERS 11 AND 12
HIS HONOUR: Now, there are certain notices of motion which we have not dealt with that were brought on 24 April 1998. I have been through them. They all seem to deal with matters that have already been dealt with or they relate to matters in respect of which no orders could reasonably be made. I think I have heard you sufficiently on them. I am going to dismiss them.
REASONS FOR ORDERS 13 AND 14
HIS HONOUR: I have before me a notice of motion dated 2 December 1997 brought by the present applicant against the respondent, which was adjourned from 6 March 1998 for hearing today. It seeks "An order of that[sic] the Order made in Proceedings File NO G 107 1995 that on 14.11. of 1995 that the applicant Pay cost to the first respondent be set aside [sic] then dispensed with at a later hearing". Associated with that notice of motion is one taken out on 27 February 1998 by the applicant for an order that the notice of motion and affidavit of 2 December 1997 be relisted for a directions hearing before Davies J with certain dates being mentioned.
The notices of motion relate to a decision given by Davies J on 14 November 1995 in respect of an application brought by the applicant against the Minister for Immigration and Ethnic Affairs and a second respondent who has been identified as a former wife of the applicant. Davies J dismissed the application with costs on the basis that the court had no jurisdiction to entertain it. This was on the basis that Mr Mansour was not a proper party under the legislation to bring such an application. Reference was made to the effect of ss 479 and 480 of the Migration Act 1958 (Cth) (“the Migration Act”) in this connection. The application had also been brought under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) and his Honour pointed out in his judgment that s 485(1) of the Migration Act prevented the court exercising jurisdiction under that section of the Judiciary Act.
These notices of motion with which I am currently dealing may well have been dealt with previously by Davies J. The court record is not clear on this point. I am, however, prepared to approach the question in this hearing, as I have told Mr Mansour repeatedly, on the basis that the decision took place in his absence and that Davies J did not deal with the matter on 1 August 1996 when he heard two applications in relation to an estimate of costs and a waiver of a filing fee.
This is a case where the Court has made a decision which has been entered up as an order of the court. Accordingly, under O 35 r 7 of the Federal Court Rules, the court can consider an application to reopen such a matter only on a very limited basis. Rule 7 par 2 states that:-
“The Court … may if it thinks fit vary or set aside a judgment or order after the order has been entered where-
(a) the order has been made in the absence of a party…”
Other grounds are provided but none of those are in any way relevant to the present situation.
Since I am approaching the matter on the basis that Mr Mansour, the applicant, was not in fact present when Davies J made the orders, particularly the cost order in respect of which this notice of motion is brought, the court has a discretion to vary or set aside that order.
I have asked Mr Mansour what he would have done had he been present during the hearing and decision of Davies J. He has told me that it was unfair to ask him that question. All I can say in response is that this case was adjourned for a period of two months in order that it would be ready to go on. Unfortunately it would appear that he has sought no legal advice and so consequently does not have any clear idea of what it is that he should be addressing his mind to. I have endeavoured to be as fair and patient as I possibly can in this regard. At best he has put to me that he would have subpoenaed a lot of information. By that I gather he would have sought the information in the subpoena which I have set aside on 20 April 1998 and in addition to which I have set aside a subpoena in exactly the same terms today. He also said that he would have obtained witnesses and he would have organised his case. Clearly the material that he sought in the subpoena could have had no bearing whatever on the question of jurisdiction. Witnesses would not have affected that question and the organising of the case would have involved simply making submissions as to the law, all of which so far as I could see would necessarily have failed, having regard to the obvious correctness of Davies J’s decision in respect of the relevant law.
So far as the matter having come before Davies J for the purpose of this application being considered, I have already pointed out to Mr Mansour that it is not physically possible for Davies J to have heard this application today. I have jurisdiction to hear it and the result is that I am quite unpersuaded that I should exercise any discretion I might have to set aside the cost order made by his Honour in his judgment on 14 November 1995.
REASONS FOR ORDER 15
In relation to the application to set aside the judgment of Branson J on the notice of motion dated 9 December 1997 and the related notice of motions of 26 November 1997 and 2 December 1997 I am of the view that I have no jurisdiction to set aside her Honour’s judgment. This application differs from the one in respect of the judgment of Davies J in that Mr Mansour was not absent from the hearing before Branson J. Accordingly, I dismiss that notice of motion also.
REASONS FOR ORDER 16
HIS HONOUR: Now, the other thing is this, there has to be some halt to the court’s time being taken up in this way, with these constant notices of motion being brought forward in irregular form and showing no particular merit. I propose to give a direction in this matter under O 46 r 7A of the Federal Court Rules. That in respect of any document sought to be filed in the registry by the applicant in any proceeding, that a Registrar consider in respect of that document, whether the provisions of Order 46 Rule 7A should be applied to it.
ORDERS MADE:
The Court orders that:
Leave to file the subpoena received in the Registry on 30 April 1998 and entitled in NG 107 of 1995 and NG 8259 of 1997 be refused pursuant to O 46 r 7A of the Federal Court Rules.
Leave to appeal the Court’s decision in respect of Order 1 above be refused.
The notice of motion filed in NG 107 of 1995 as related to NG 8259 of 1997 on 28 April 1998 which commences “ An order the applicant be Granted leave and Junction relief adequate and as required to manage these Proceedings before the Court according to the circumstances of the Court, according to the circumstances of the applicant and the circumstances of the Proceedings.…” be dismissed.
The notice of motion filed in NG 107 of 1995 as related to NG 8259 of 1997 on 28 April 1998 which commences “An order that the applicants notice of motion filed on the 27th of February 1998, that was decided on behalf of the applicant and set to be heard on the 1st of May 1998 by Justice Foster. J be vocated [sic] …” be dismissed.
The notice of motion filed in NG 107 of 1995 and NG 8259 of 1997 on 20 April 1998, time-stamped at 9.22 am, which commences “An order that the return of Subpoena that came before registrar Hedge on the 18th of March 1998 and the leave granted to the Government solicitor M’s Mary Hawkins to file a notice of motion and affidavitt [sic] to strike out the applicants Subpoena filed on the 6th March 1998 …” be dismissed.
The notice of motion filed in NG 107 of 1995 as related to NG 8259 of 1997 on 28 April 1998 which commences “An order that the applicants notice of motion filed on …. to strike out the Goverment [sic] solicitor Mr M. Muarry notice of motion filed on the 30.3.98 to strike out the applicants Subpoena filed on 6.3.98…” be dismissed.
Leave to appeal from the interlocutory judgment of Foster J given on 20 April 1998 be refused.
The notice of motion filed in NG 107 of 1995 as related to NG 8259 of 1997 on 28 April 1998 which commences “An Order that the applicants notice of motion filed on 9th Dcember [sic] 1997 set to be heard on the 1st of May 1998 and the two Orders within to be be heard separately on diferent [sic] dates, and the 1.5.98 hearing for these motions to be adjerned genrally [sic]…” be dismissed.
9,The notice of motion filed in NG 107 of 1995 and NG 8259 of 1997 on 20 April 1998, time-stamped at 16:54, which commences “An order that the notice of motion and affidavit filed om the 27th of February 1998, that was listed for directions hearing before Justice Davies on the 16th of April 1998 …” be dismissed.
The notice of motion filed in NG 107 of 1995 and NG 8259 of 1997 on 20 April 1998, time-stamped at 16:54, which commences “An order that the this [sic] notice of motion to be relistered [sic] before Justice Davies …” be dismissed.
The notice of motion filed on 24 April 1998 in NG 107 of 1995 which commences “An order that the tapplicant [sic] requests that this notice of motion to be relistered [sic] before Justice Foster. J for directions hearing …” be dismissed.
The notice of motion filed on 24 April 1998 in NG 107 of 1995 as related to NG 8259 of 1997 which commences “An order that the leave Granted to the Government solicitor M’S Mary Hawkins to file notice of motion and affidavitt [sic] on the 18.3.98 …” be dismissed.
The notice of motion filed on 2 December 1997 in NG 107 of 1995 as related to NG 8259 of 1997 which commences “ An order of that [sic] the Order made in Proceedings File NO G 107 1995 that on the 14.11.of 1995 that the applicant Pay cost to the first respondent be set aside …” be dismissed.
The notice of motion filed on 27 February 1998 in NG 107 of 1995 be dismissed.
The notice of motion filed on 9 December 1997 in NG 8259 of 1997 in connection with related motions, being one filed in NG 8259 of 1997 on 27 November 1997 and another filed in NG 107 of 1995 on 2 December 1997 which commences “An order of that the hearing for Bankruptcy Proceedings set for the 2nd Dec 1997 be vacated and stayed …”, be dismissed.
A Registrar consider, in respect of any further document sought to be filed by the applicant in the Registry in any proceeding, whether the provisions of O 46 r 7A of the Federal Court Rules should be applied to it.
I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.
Associate:
Dated: 1 May 98
The Applicant appeared in person Solicitor for the Respondent: Mr M. Murray of the Australian Government Solicitor Date of Hearing: 1 May 1998 Date of Judgment: 1 May 1998
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