Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA)

VICTORIA DISTRICT REGISTRY	) NO. VG 204 of 1991
GENERAL DIVISION	1

Between: ATECA DISAVE RASILA

Applicant

and: MINISTER FOR IMMIGRATION,

LOCAL GOVERNMENT h ETHNIC

AFFAIRS

Respondent

~infeld J Melbourne 6 Aumst 1991

Two matters are before the Court. The first is in two parts - namely whether the existing deportation order signed on 25 July 1991 should be stayed pending the hearing of the action or, as an alternative on that aspect of the matter, whether the respondent should be restrained from deporting the applicant from Australia pending that hearing. The second is whether an order should be made that the applicant be released from custody in which she 6as been for about 2 months.

questions of law raised.

I have already found earlier today that one or more arguable and potentially serious issues exist to be tried in the application for principal relief. Of course, the factual material available on those issues is as yet totally untested, having been placed before the Court primarily by the respondent through his officers in the form of affidavits and annexed exhibits. It is not appropriate in an interlocutory proceeding of this kind to test in detail the veracity of that factual material, still less to argue at length the difficult

An objection is made that the questions of estoppel and waiver

referred to in the earlier judgment were not pleaded by the applicant. Of course, in the application for primary relief, these matters do not arise until the respondent raises by way of answer or defence that the matters relied upon by the applicant in the primary application ought not to be accepted or even considered because they are statute barred. In other words, the applicant cannot plead estoppel and waiver until the facts and law to which they are in answer are raised by way of defence. Thus they only fall to be dealt with by way of reply. Hence the absence of any reference to estoppel or waiver in the application for primary relief is not presently relevant. If it were, the matter could be dealt with by amendment.

The present situation therefore is that if certain facts are proved, the applicant may be able to make out a case for the primary relief o'f a review of the relevant decisions. The applicant ought also to be allowed to seek a review of the deportation order signed on 25 July which, as I earlier	pointed out, appears to have come into existence on the very	same day on which the application for order of review was
sought. It is a nice question as to whether an application for primary relief, issued on the same day as the deportation order, can be amended to embrace that deportation order. If it is not possible, a separate application can be made.

I agree with the respondent that this is not a strong case for

the applicant, the more so since I have now heard the evidence…