Applicant S453 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1443

FEDERAL COURT OF AUSTRALIA

Applicant S453 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1443

APPLICANT S453 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 1302 of 2004

HILL J
20 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1302 OF 2004

BETWEEN:	APPLICANT S453 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	20 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant may rely upon the amended notice of appeal.

2.The applicant’s application for an order as to mediation be refused.

3.The applicant’s motion is otherwise dismissed.

4.Costs of the motion be reserved.

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	N 1302 OF 2004

BETWEEN:	APPLICANT S453 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	20 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HILL J:

1. Before the court is a motion brought on notice by the applicant seeking orders:

   (1)      That certain directions that have been made by me relating to the filing of submissions be set side. 

   (2)      That there be enforced directions given by the Chief Justice regarding appeals, which include the settling of appeal indexes, and further, that the applicant be granted leave to amend the grounds of his leave to appeal application and the notice of appeal.

2. The present matter arises following the judgment of Sackville J of 30 August 2004, in which his Honour, inter alia, dismissed the application by the applicant for an order nisi, inter alia, quashing the decision of the respondent Minister prohibiting him from working or studying, compelling the Minister to give the applicant access to Medicare, and ordering the Minister to compensate the applicant for damages.

3. The applicant, being dissatisfied with that judgment, applied for leave to appeal from it.  That application was listed for hearing before me on Wednesday, 27 October 2004.  In connection with it, directions were given as is normal for the filing of submissions, those directions being that the applicant file and serve written submissions by 22 October 2004, and that the respondent file and serve written submissions by 26 October 2004.  No orders were made concerning the preparation of an appeal book.  No doubt, a reason why no such orders were made was the expense to which it would put the applicant if he were to prepare a full appeal book after the procedure of settling it had taken place.

4. The applicant's complaint about the directions regarding the submissions is, in essence, that they do not provide for the applicant to file submissions in reply.  It is, of course, not intended to preclude the applicant replying to the written submissions that will be filed by the respondent Minister.  Part of the problem, no doubt, arises from the short time that is to elapse between now and the date of hearing.  If the applicant does not file his submissions until the 22 October 2004, then it is unlikely that the respondent Minister would be able to deal with those submissions until 26 October 2004, being the day immediately prior to the hearing.  No doubt, the sooner the applicant files his written submissions the sooner the respondent Minister can respond to them. I do not propose to vary the orders concerning submissions.  Rather, to the extent that the applicant does not have time to file and serve written submissions in reply, before the hearing, he is welcome and, indeed, urged to put any submission he may wish to put orally at the time of the hearing.

5. The second matter raised in the motion concerns the filing of appeal books.  I have indicated to the applicant in the course of argument, that it is unlikely that any documents other than his initial application for constitutional writs, and the judgment of Sackville J, would be relevant to the issues which arise on the application for leave to appeal.  He says, however, he wishes to put before the Court other documents. I have no objection to his preparing a list of documents, to which he wishes to refer, provided he gives a copy of that list to Mr Markus.  Those documents are available on the Court file and can be referred to, to the extent they are relevant, without the need for the applicant preparing a full appeal book.  So that the matter is clear, I would indicate that I will dispense with any requirement for preparation of an appeal book, so far as concerns his application for leave to appeal.

6. The final matter raised was to the grant of leave to amend the application for leave to appeal and to substitute a new amended notice of appeal.  So far as the amended notice of appeal is concerned, and to the extent that leave is necessary, the applicant may rely on the amended notice of appeal as being the notice he would contemplate filing in the event that leave is granted to appeal.

7. The Minister objects to the amendment to the application for leave to appeal in so far as it refers to an affidavit sworn on 30 October 2004, which is presently before me in support of the applicant's motion.  On the face of it, there is nothing in that affidavit that would constitute a ground for the applicant's application for leave to appeal.  However, the applicant says that he wishes to rely on paragraphs 8 and 9 of that affidavit in support of his application for leave to appeal against the decision of Sackville J.

8. Paragraphs 8 and 9 concern an allegation of what is said to be inappropriate conduct of the associate to Sackville J.   In a conversation the associate is said to have had with the respondent Minister's solicitors concerning a list of authorities, it is said that the associate's action shows extreme bias and prejudice to the applicant and could interfere with the proper administration of justice.  There is nothing put before me as to what is said to have passed between the associate and the respondent's solicitors.  However, whatever may have passed there is no suggestion that that conversation in any way could have interfered with the judgment of Sackville J, and certainly it is hard to see how that conversation could provide any grounds at all for showing error on the part of Sackville J in refusing to make an order nisi. In these circumstances I reject the application for leave to amend the grounds of application for leave to appeal on the basis of material in the affidavit of 13 October 2004. 

9. An application was also made before me this morning that I direct that the present proceedings go to mediation before a mediator to be appointed by the court.  The Minister submits that the present proceedings would not be a matter where mediation could usefully take place, in essence because the provisions of the Migration Act 1958 (Cth) regulate the claim by the applicant and there is no room for any compromise which a mediation might be directed towards.  Although the Court does have power to compel mediation it is a power which it would exercise only in an appropriate case.  The present is not a case, in my view, in which it is appropriate to order mediation to take place.  The present application for leave to appeal is one that the Minister vigorously opposes and I am not satisfied that to refer the matter to mediation would be otherwise than an exercise in futility.  I would accordingly refuse the application.

10. I reserve the costs of the motion which otherwise I will dismiss.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             10 November 2004

Applicant appeared in person.
Counsel for the Respondent:	A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 October 2004
Date of Judgment:	20 October 2004