Applicant A17/2002 v Minister for Immigration and Multicultural and Indigenous Affairs

Case •

[2003] FCA 1080

•

8 OCTOBER 2003

FEDERAL COURT OF AUSTRALIA

Applicant A17/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1080

APPLICANT A17/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, KEN NORTHWOOD, MEMBER REFUGEE REVIEW TRIBUNAL AND PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S40 OF 2003

MARSHALL J
8 OCTOBER 2003
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

S40 OF 2003

BETWEEN:

APPLICANT A17/2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

KEN NORTHWOOD, MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

8 OCTOBER 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs of the application.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

S40 OF 2003

BETWEEN:

APPLICANT A17/2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

KEN NORTHWOOD, MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

MARSHALL J

DATE:

8 OCTOBER 2003

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The applicant applied to the High Court of Australia on 18 February 2002 for an order nisi in respect of constitutional writs against the respondents. On 7 February 2003, further proceedings in the application were remitted to this Court. The first directions hearing was programmed for 3 April 2003 in Adelaide in the South Australia District Registry. On that day von Doussa J made orders which were vacated by consent on 15 April 2003.

  2. On 10 June 2003, Selway J ordered as follows:

    “1.      The applicant, by 17 July 2003:

    (a)   If an extension of time within which to commence the proceedings is required, file and serve a notice of motion seeking an extension of time together with an affidavit by the applicant personally explaining the reasons for the delay in commencing the proceedings and deposing the reasons why an extension of time should be given. The notice of motion shall be made returnable for hearing at the next directions hearing.

    (b)   file and serve an amended application specifying precisely the error or errors upon which the decision under review is challenged.

    (c)    file and serve outline of submissions.

    (d)   file and serve a memorandum stating:

    ·    the State or Territory in which the applicant is residing;

    ·    whether the applicant wishes to be present at the hearing of the application;

    ·    whether the matter is one that could be transferred to the Federal Magistrates Court;

    ·    whether the applicant objects to transfer to the Federal Magistrates Court and, if so, the grounds for objection.

    2.In the event that an extension of time is sought, the respondent is at liberty, within 2 weeks of receiving the notice of motion, to file and serve an affidavit in opposition to the extension of time.

    3.The respondent within 3 weeks of receiving the applicant’s submissions pursuant to par 1(c) above, file submissions in reply.

    4.The directions hearing is fixed for Friday 1 August 2003 at 9.00 am.

    5.In the event that order 1 is not fully complied with, the applicant will be called upon at the adjourned directions hearing to show cause why the matter should not stand dismissed.

    6.Liberty to apply.”

  3. On 1 August 2003, Lander J ordered as follows:

    “1.The time in which the Applicant has to comply with paragraph 1 of the orders made by Selway J on 10 June 2003 is extended until 28 August 2003.

    2.The Applicant’s former solicitor, Mark Clisby, within 48 hours forward to the Applicant at PO Box 443, Griffith, 2680 the following documents:

    a.A copy of the affidavit of Mark Clisby filed in the High Court of Australia and sworn on 15 February 2002;

    b.A copy of the order of Hayne J of 7 February 2003;

    c.The Court Book or a copy of it;

    d.A copy of the order made by Selway J on 10 June 2003.

    3.The proceedings be transferred to the Victoria District Registry of this Court.

    4.The directions hearing be adjourned to a date to be fixed by the Victoria District Registry of the Court.

    5.Costs in the cause.

    6.Liberty to apply.”

  4. On 5 September 2003, Mr Weerakoon, solicitor, filed a notice of appearance on behalf of the applicant. Also on that day I ordered as follows:

    “1.The time in which the applicant has to comply with paragraph 1 of the orders made by Selway J on 10 June 2003 is extended to 19 September 2003.

    2.Order 1(d) of the orders made by Selway J on 10 June 2003 be varied to remove the last and second last dot points.

    3.In the event that Order 1 of the orders of Selway J as varied is not fully complied with, the application will stand dismissed.

    4.The directions hearing be adjourned to 9.30 am on Wednesday 8 October 2003.

    5.Costs be reserved.”

  5. On 19 September 2003, the applicant filed an amended application, his contentions of fact and law and a memorandum of the type referred to in para 1(d) of the 10 June 2003 order of Selway J.

  6. The solicitor for the applicant conceded that the applicant did not fully comply with the order of Selway J of 10 June 2003 as varied on 1 August and 5 September 2003. The applicant did not, on or before 19 September 2003, file and serve a notice of motion and affidavit of the type referred to in paragraph 1(a) of the order of 10 June 2003.

  7. On 5 September 2003, I informed the solicitor for the applicant that I had come very close to dismissing the application on that day for the applicant’s continued failure to comply with orders of this Court. I further informed the solicitor that the applicant was to have one last chance to comply with an order of the Court. He consented to the order of 5 September 2003 on that basis but has not fully complied with it. Accordingly, the application for an order nisi stands dismissed. I reject the oral application of the solicitor for the applicant for him to have further time to comply with para 1(a) of the orders of Selway J. The self-executing order made on 5 September 2003 took effect on 20 September 2003 and the application stood dismissed at that time. In making the orders of the Court today, the Court simply confirms the effect of the self-executing order.

  8. I note that on 5 September 2003, I informed the solicitor for the applicant that as the decision of the Refugee Review Tribunal subject to challenge was made prior to 2 October 2001 the proceeding was incapable of being transferred to the Federal Magistrates Court on account of it not having jurisdiction in such matters until that time.  On that basis I made order No 2 of the orders made on 5 September 2003. It is not appropriate to transfer the proceeding in these circumstances and given that there has been failure to comply with what, in effect, was a self executing order the application stands dismissed.

  9. The formal orders of the Court are:

    1.The application be dismissed.

    2.The applicant pay the first respondent’s costs of the application.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:            8 October 2003

Solicitor for the Applicant: Mr Chandra Weerakoon
Counsel for the First Respondent: Ms Sally Weavers
Solicitor for the First Respondent: Clayton Utz
Counsel for the 2nd and 3rd Respondents The 2nd and 3rd respondents did not appear
Date of Hearing: 8 October 2003
Date of Judgment: 8 October 2003
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