C7A/2017 v Minister for Immigration
[2018] FCCA 458
•2 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| C7A/2017 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 458 |
| Catchwords: PRACTICE AND PROCEDURE – Transfer application after remittal from High Court – principles considered and application refused – “show cause” application in relation to the conduct of the solicitor acting for the Applicant and possible referral to ACT Bar Association and Law Society in relation to repeated submissions, rejected by the High Court in three separate recent decisions, in using only a dissenting judgment of Kirby J in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12. |
| Legislation: Federal Court of Australia Act1976 (Cth), s.48(2) Federal Circuit Court of Australia Act 1999 Judiciary Act 1903 (Cth), s.44 |
| Cases cited: APLA Limited v Legal Services Commissioner (NSW) (2005) 224 CLR 322 CMA Corporation Limited v McSorley [2011] FCA 747 DC Payments Pty Ltd v Fitzpatrick [2013] FCCA 1415 G. Dal Pont, Lawyers’ Professional Responsibility (Fifth Edition) (Sydney: Lawbook Company, 2013) | ||
| First Applicant: Second Applicant: Third Applicant: | C7A/2017 C7B/2017 C7C/2017 | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 77 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | Dealt with by way of written submissions |
| Date of Last Submission: | 24 October 2017 |
| Delivered at: | Canberra |
| Delivered on: | 2 March 2018 |
REPRESENTATION
| Solicitors for the Applicants: | Hugh Ford & Associates |
| Solicitors for the First Respondent: | Clayton Utz (Canberra) |
ORDERS
The oral Transfer Application made by the solicitor for the Applicants on 26 September 2018 be dismissed.
The Parties are to file and serve Written Submissions, of no more than 1 page in length within 7 days from the date of these Orders, that is by close of business on 9 March 2018, as to whether the Applicants, or someone on their behalf, should pay the First Respondent’s costs associated with the Transfer Application.
The Applicants’ solicitor is to file and serve Written Submissions, of no more than 1 page in length within 7 days from the date of these Orders, that is by close of business on 9 March 2018, to show cause (a) why a copy of the Reasons delivered today should not be forwarded to the Presidents of the ACT Bar Association and the Law Society of the Australian Capital Territory, and equally (b) why the solicitor for the Applicants should not be enjoined from appearing in matters (including the present proceeding) before me. The First Respondent’s solicitor is at liberty to provide written submissions regarding these “show cause” questions if the Minister chooses to do so within the same parameters as set out in this Order.
The matter remains listed for Hearing on 12 June 2018 at 3:00pm in CANBERRA.
THE COURT NOTES THAT:
(A)Failing compliance with Order 3, the Court will, without further notice, provide a copy of the Reasons delivered today to the Presidents of the ACT Bar Association and the Law Society of the Australian Capital Territory.
(B)Should Order 3 of today’s Orders be complied with, those submissions will also be forwarded with a copy of the Reasons delivered today to the Presidents of the ACT Bar Association and the Law Society of the Australian Capital Territory in the event that the Court determines that the Reasons should be so provided.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Canberra |
CAG 77 of 2017
| C7A/2017 |
First Applicant
C7B/2017
Second Applicant
C7C/2017
Third Applicant
And
| Minister for Immigration & Border Protection |
First Respondent
| Administrative Appeals Tribunal |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This migration matter was commenced in the original jurisdiction of the High Court of Australia. The matter came before her Honour, Bell J on 24th August 2017, it having been filed in the Canberra Registry of the High Court, but heard by her Honour in Sydney. Bell J remitted the proceeding to this Court in this Registry.
The following reasons deal with two aspects of the proceeding: (a) the Applicant’s Application to have the matter transferred to the Darwin Registry of this Court, and (b) some matters pertaining to the conduct of the Applicants’ legal representative.
The Transfer Application: Chronology, Consideration & Disposition
The present issue for determination concerns a Transfer Application made by the Applicant that the proceedings should be transferred to the Darwin Registry of this Court. This Application was made orally by the solicitor for the Applicant on 26 September 2017, and then, contrary to Orders of this Court for there to be a formal Application, confirmed in an Affidavit [only] filed by the First Applicant on 10th October 2017. The Court in its Orders made on 26th September 2017 directed that the Applicants’ transfer Application proceed by way of, and be determined pursuant to, written submissions and the other material filed.
On 26th September 2017, the Court made Orders by consent, subject to the Court’s determination of the Transfer Application, for the future conduct of the matter regarding the filing of materials, including a Court Book.
On that occasion the Court ordered the Applicants to file and serve a Transfer Application and accompanying written submissions (of no more than 1 page) within 14 days, namely by 10th October 2017. No such Application has ever been filed.
Rule 13.03A(1) of this Court’s Rules prescribe the circumstances when a party is in default, which includes the failure of an Applicant “to comply with an Order of the Court”.
Rule 13.03B provides for the consequence of default. The remedies available to the Court include staying or dismissing the proceeding.
Currently, there is no Application for any relief by the First Respondent regarding the default on the part of the Applicants.
In relation to the substantive Application, such as it is – a three sentence Affidavit was affirmed by the First Applicant and filed on 10th October 2017. That Affidavit deposed that the Applicant lives in Darwin, and has done so for 4 years. No submissions have been filed as ordered.
Strictly speaking, because there has been no compliance with the Court’s Orders, the Court could simply dismiss the Transfer Application. However, for completeness I note the following.
First, Rule 8.01 of this Court’s Rules governs or provides for matters to be transferred to another Registry of the Court.
Secondly, the First Respondent only has filed written submissions. I accept and adopt them in their entirety. They were as follows:
1) These submissions are filed by the First Respondent in accordance with the orders made by his Honour Judge Neville at the directions hearing on 26 September 2017. Those orders required the Applicant to file and serve a transfer of proceedings application and accompanying written submissions by 10 October 2017. She has not done so. Rather, the Applicant has filed an affidavit dated 10 October 2017 which states that she currently resides in Darwin.
2) In circumstances where the Applicant has not filed a formal change of venue application pursuant to rule 8.01 of the Federal Circuit Court Rules 2001, it is unclear whether the Applicant still wishes to have the proceeding transferred to another Registry (be it Darwin or elsewhere).
3) Notwithstanding, the Respondent opposes any purported application for the following reasons:
a) both parties representatives are based in the Australian Capital Territory. It is clearly more convenient to both parties for the proceeding to be dealt with in the Canberra Registry;
b) there is nothing before the Court to indicate that a transfer of proceedings would limit expenses or costs. To the contrary, given that the Applicant's representative would have to travel to Darwin to appear at the final hearing, a transfer of proceedings would more likely increase expenses for the Applicant as well as the First Respondent;
c) this matter was initially filed by the Applicant in the original jurisdiction of the High Court of Australia and heard in the Sydney Registry on 24 August 2017 (HC C7 /2017), at which time Bell J ordered the matter to be transferred to the Canberra Registry of this Court. At no point during those proceedings did the Applicant express any difficulty with the matter being heard in Sydney and not Darwin;
d) to the extent that the Applicant wishes to give oral evidence at the final hearing, the Respondent would express no objection to her doing so by phone or by video-link; and
e) although the matter has not yet been listed for a final hearing, this does not outweigh any of the considerations identified above.
Thirdly, as already noted, the matter was commenced initially in the Canberra Registry of the High Court of Australia. Clearly the Darwin residence of the Applicants was no impediment to that Application, irrespective how long the Applicant had resided there. As deposed to in her Affidavit, presumably prepared by the solicitor for the First Applicant, the said period was four (4) years, while as stated in open Court by the same solicitor, the Applicant had lived in Darwin only six (6) months. There is clearly no way of discerning, at this stage, which account provided by the solicitor is correct: 4 years or 6 months. It was heard in Sydney, as I have said. The solicitors for both parties appeared before Bell J.
Fourthly, the Applicants’ solicitor is ordinarily resident and practices out of an address in central Canberra. Clearly, there is no impediment to this solicitor acting on behalf of his clients based in Darwin. Indeed, it may be that if the matter was to be transferred to the Darwin Registry, more costs would be incurred by the Applicants because their solicitor would presumably wish to continue to act for them and if so would have to travel to Darwin. On the other hand, as the Minister says, there is no objection to the Applicants giving any evidence (as required) by video link at the substantive hearing.
General principle in relation to Transfer Applications has been set out in many cases in this Court and in the Federal Court. For present purposes, I need only note the decision of her Honour, Judge Whelan in DC Payments Pty Ltd v Fitzpatrick; and in even more detail by the Full Court of the Federal Court of Australia, in its consideration of s.48(2) of the Federal Court of Australia Act (1976), in National Mutual Holdings Pty Ltd v The Sentry Corporation. Rather more recently, I note the comments by Robertson J in CMA Corporation Limited v McSorley.[1]
[1] DC Payments Pty Ltd v Fitzpatrick [2013] FCCA 1415; National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 at 162; 83 ALR 434 at 441 – 442 (“Sentry Corporation”); CMA Corporation Limited v McSorley [2011] FCA 747 at [4] – [7].
For current purposes, it is sufficient to note the comments by the Full Court in Sentry Corporation. There, the Full Court said, at [35] and [36]:
[35] … The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the Court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the Court to such matters before directing that the proceeding should continue at a different place.
[36] The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely.
Applying the principles articulated in the cases to which I have referred to the current, rather spare but in some ways internally inconsistent factual circumstances, the Transfer Application must be dismissed.
In such circumstances, it would normally be appropriate, perhaps, either to reserve the First Respondent’s costs or to award costs in the First Respondent’s favour in relation to the unsuccessful Transfer Application. However, because of the Applicants’ failure to comply with the Orders of the Court in relation (a) to filing an Application and (b) to provide written submissions, in my view the most appropriate course is to require both parties to file written submissions of no more than 1 page in length within 7 days as to why the Applicants, or someone on their behalf, should not be ordered to pay the First Respondent’s costs. Absent any submissions by the Applicants within the time prescribed an Order will be made in Chambers for costs in favour of the First Respondent in relation to the Transfer Application.
Other Matters: the Conduct of the Applicants’ Solicitor
Unfortunately, because of the Applicants’ solicitor’s conduct in the current matter, and in other matters before this Court, I must, in fairness, note the following and give that solicitor an opportunity to respond to my comments. Absent him doing so within 7 days, and not satisfactorily addressing the basal principles that, in my view, have been breached, a copy of these Reasons will be forwarded to the Presidents of the ACT Bar Association and the Law Society of the Australian Capital Territory. Of course, anything provided by the solicitor to the Court will also be provided to the professional bodies to which I have referred.
Further, because this is the most recent of many matters in which procedural and basic legal principle has been lacking to a very significant degree, subject to anything put by the solicitor in his submissions, he may be enjoined from appearing before me in the future. His lack of preparedness for any hearing, and his continued insistence on using as precedent a dissenting judgment of the High Court (SGLB – noted further below), not only fails the most basic of legal principles but he continues to use it after being disabused of its utility by multiple High Court Judges. He then has the temerity to insist that his assessment of the principles espoused in that dissenting judgment is not wrong. As well, his lack of preparedness and his continued but improper use of authority ultimately leads to the Court regularly having to use many more resources than is appropriate. Indeed, the waste of Court resources in matters involving this practitioner is and remains a growing concern, especially having regard to the High Court’s strong instruction about courts being public resources and the flow-on effects for other litigants from the improper or inordinate use of those resources.[2]
[2] See Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303.
As earlier noted, this matter commenced by way of an Application for an Order to “show cause” filed by the Applicant in the High Court of Australia on 18th May 2017, directed to the Minister and to the Administrative Appeals Tribunal, pursuant to which certain constitutional relief was sought against the “legal persons” named.
I note [again] that the Applicants commenced these proceedings in the Canberra Registry of that Court; and as noted earlier in these reasons, Bell J heard the matter sitting in Sydney. The relief claimed in that Application was, generally, for writs of certiorari and mandamus to issue to quash and compel the Administrative Appeals Tribunal to make its decision according to law. The Applicants also sought a declaration that “the High Court must review this case on its merits”. The Application filed with the High Court was filed by the solicitor for the Applicants with the appropriate certification as to its reasonable grounds for success.
The relevant decision of the Tribunal in relation to which the Applicants sought relief was made on 13th April 2017.
In the submissions filed by the Applicants in the High Court on 22nd May 2017, there were a number of contentions in relation to the decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB,[3] as well as various contentions regarding the [alleged] ‘bias’ of Courts, and in particular this Court, in relation to reviewing decisions made by the Minister.
[3] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224; (2004) 207 ALR 12; (2004) 78 ALJR 992.
The solicitor for the Applicants contended before Bell J as follows.
At paragraph 1, the solicitor noted that the [dissenting] comments made by his Kirby J in SGLB do not represent the view of the majority of the Court but he went on to assert that, nonetheless, his Honour’s judgment has not formally been rejected, a curious proposition at least. In his words, the majority judgment in SGLB “did not derogate from or disagree with … the principles enunciated by his Honour.” This same advocate regularly makes the same submission in proceedings before me. He has made the same submission in other similar Applications to the High Court. On each occasion before the High Court this argument has not been accepted. Nor has it ever been accepted by me. It makes no difference that on each occasion before me he has been (a) requested to provide any High Court or Full Federal Court of Australia authority that has endorsed the dissenting judgment of Kirby J - no such invitation has ever been responded to and no decision requested has ever been provided -, and (b) by definition, a dissenting judgment, without more, cannot be the foundation for any relevant principle, least of all by an intermediate Court such as this one. Their Honours Nettle and Bell JJ, on different occasions, have each pointed out the error of the solicitor’s ways, but he continues to pursue his clients’ cases on the basis of Kirby J’s dissenting judgment in SGLB. This too is an obvious waste of the Court’s time, the Minister’s lawyer’s time and money and equally a waste of his client’s time and money. He clearly pursues an argument that has no prospect of success, and does so in the face of clear statements by the High Court of the futility of his argument. Almost brazenly he contends that his interpretation of the dissenting judgment of Kirby J in SGLB “is not wrong”, even when he is told the contrary by the High Court.
In SZUSH v Minister for Immigration & Border Protection & Ors,[4] the same solicitor made what might be described as his “usual” and unsupportable or unsustainable submission to Nettle J relying upon Kirby J’s dissenting judgment in SGLB, thus:
Essentially, every decision of the Administrative Appeals Tribunal in the Refugee Review Division infringes the principles as stated by his Honour Justice Kirby in SGLB. There is a consistent, constant assessment of credibility, there is never any assessment of the particular claims of the applicant and, as such, all decisions of the Refugee Review Tribunal – sorry, the Refugee Review Division in the Administrative Appeals Tribunal is now open to question. But, nevertheless, it is my submission, your Honour, that these matters have no time limit, the Constitution does not impose a time limit and the fact that the legislature attempts to restrict the time limit is an unlawful practice.
[4] SZUSH v Minister for Immigration & Border Protection & Ors [2016] HCATrans 112 (13 May 2016) (“SZUSH”).
In his reasons, Nettle J responded to these contentions as follows:[5]
Contrary to SZUSH’s contentions, it is not the law that the credit and reliability of an applicant’s evidence is irrelevant in the determination of a review of an application for protection visa. Where the establishment of facts is dependent on oral evidence, the evidence must be assessed and weighed in light of its apparent credibility and reliability and findings must be made according to that assessment (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (“MIMIA”) at 21-22 [42] – [44] per Gummow and Hayne JJ.)
No doubt, as SZUSH contends, refugee cases involve special considerations where credibility is in issue (MIMIA (2004) 207 ALR 12 at 33 [73(7)] per Kirby J, in dissent.) As Kirby J observed in MIMIA, “There is no necessary correlation between inconsistency and credibility in such cases”. It is necessary to keep in mind that there may be a host of ethnic, cultural, lingual, physical, behavioural and psychological considerations peculiar to refugees which, depending upon the circumstances of a given case, may explain inconsistencies that would otherwise be thought to reveal dishonesty. But, that said, it remains a process of evaluation for the tribunal of fact to determine what, if any, weight is to be placed on an applicant’s version of events; and where, as here, there were many reasons to disbelieve an applicant’s version of events it is not in error to reject it.
[5] SZUSH [2016] HCATrans 112 (13 May 2016).
Similarly, and not three months later, the same solicitor again appeared in the High Court in his capacity as a registered Migration Agent in MZAHH.[6] On that occasion, after dealing with the asserted invalidity of certain sections of the Migration Act (based, her Honour said, upon a “misconception” of what was said by the High Court in earlier decisions), and again regarding the asserted unconstitutional fettering of the High Court’s power to remit matters, Bell J again addressed the advocate’s argument based upon SGLB (noting her Honour’s agreement with Nettle J in SZUSH) as follows (footnotes omitted; emphasis added):[7]
In written submissions the plaintiff contends additionally that the Tribunal was biased and the fact that “certain questions” were asked is an indication of a reasonable apprehension of bias. It was necessary for the plaintiff to satisfy the Tribunal that he met the statutory criteria for the grant of a protection visa. The Tribunal was required to set out findings on material questions of fact in its reasons for decision. Its reference to the lack of detail in the plaintiff’s account of the assault and its characterisation of that part of the plaintiff’s account as “particularly terse” were factors which inclined it against acceptance of the claim to have been assaulted.
There is no warrant for the bald assertion that the Tribunal was biased or for the claim of a reasonable apprehension of bias. The contention that the credibility of an applicant for review before the Tribunal is irrelevant to its determination appears to be based on a misreading of this Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB. To the contrary, as Justice Nettle held in SZUSH v Minister for Immigration and Border Protection, where the establishment of facts depends on oral evidence, the evidence must be assessed and weighed in light of its apparent credibility and reliability and findings must be made according to that assessment.
The Tribunal gave cogent reasons for its conclusion that the plaintiff’s account of being attacked, knocked unconscious and waking up in hospital was fabricated in order to bolster his claims. It was open to the Tribunal to have regard to country information and the contention that it gave excessive weight to that information does not give rise to an arguable basis of challenge. Nothing in the plaintiff’s submissions supports a conclusion that the Tribunal’s decision is legally unreasonable.
[6] MZAHH v Federal Circuit Court of Australia & Ors [2016] HCATrans 177 (2 August 2016)
[7] MZAHH v Federal Circuit Court of Australia & Ors [2016] HCATrans 177 (2 August 2016) p.29.
Despite these clear statements regarding the solicitor/advocate’s mis-interpretation of SGLB, it was advanced again by the same person in the same Court not one month later, again before Bell J in the present matter of Plaintiff C7A v Minister for Immigration & Border Protection.[8] In those proceedings, it is as well to set out in full certain parts of the exchange and submissions made by the solicitor with her Honour, thus (emphasis added):[9]
[8] Plaintiff C7A & Ors v Minister for Immigration and Border Protection & Ors [2017] HCATrans 169 (24 August 2017).
[9] Plaintiff C7A & Ors v Minister for Immigration and Border Protection & Ors [2017] HCATrans 169 (24 August 2017) pp.2 – 5. For ease of reference a copy of the full transcript of the proceeding before Bell J is attached to these reasons.
MR FORD: Your Honour, the plaintiffs have commenced proceedings pursuant to section 75(v) of the Constitution. I should point out this is a constitutional right to seek review. While there may be a discretion as to the remedies which the Court may grant, there is a right to seek review and that right is a right to seek review by the High Court, not by the Federal Circuit Court. Now, while there may be - - -
HER HONOUR: There is, in some respects, a novel aspect to that submission, Mr Ford. The fact that proceedings are commenced in this Court to obtain the discretionary remedies that are claimed in your application to show cause may be thought to be putting it high to characterise as a right the issues in the submissions made on behalf of the first defendant are suggested not to be of the nature to engage the jurisdiction of the Court. Now, if there is something that you want to put to me in that respect that would be helpful, but I am not sure that I am greatly assisted by being told that you have a right to proceed in this Court regardless of the issues that the matter raises.
MR FORD: I accept that, your Honour, but that is the plaintiffs’ contention, that it is at that higher stage of being a right to seek review. While there may be a rule or a statute which authorises the remittal of the matter to the Federal Circuit Court, the Constitution does not contain authority or a power to remit. The power to remit comes from a statute or from the High Court Rules and if the High Court Rules were to be invoked to remit the matter then the Court would be acting beyond power because the Constitution does not contain a power to remit and here we are – the Rules are giving the Court the power to remit when that is not in the Constitution.
So if there were to be a remittal, it is the plaintiffs’ contention that that would be – the Court would be acting - in simple ultra vires it would be beyond power to do that. Your Honour, I do not propose to elaborate on those things. This is simply a directions hearing and I am conscious of the fact that we have other matters which are before the Court.
HER HONOUR: Mr Ford, I have before me this morning submissions by the first defendant that the appropriate course is that I remit this matter to the Federal Circuit Court for the reasons identified in Ms Wong’s written submissions. I propose to deal with that application. I just wish that to be clear to you.
MR FORD: Yes, your Honour. The plaintiffs contend, as was indicated, that there is no authority to remit. If the Court chooses to rely on a rule or a statute to authorise that remittal then the Court – the High Court would be acting beyond power. Now, another reason why the plaintiffs do not want this matter to be remitted is because the plaintiffs have real concerns about the bias of the Federal Circuit Court. The first issue about the bias of the Federal Circuit Court - - -
HER HONOUR: Mr Ford, that is a grave allegation to make - an unparticularised assertion that the members of the Federal Circuit Court are biased.
MR FORD: Well, your Honour - - -
HER HONOUR: Mr Ford, members of the profession enjoy a privilege in appearing before this Court and other courts and I just draw to your attention the need to be careful in the exercise of it.
MR FORD: Yes, your Honour.
HER HONOUR: I do not think I need elaborate on that, Mr Ford, but - - -
MR FORD: I suppose at the heart of this issue, your Honour – you are obviously aware that the Full Court of the Federal Court had reason to make – hand down its decision concerning the issue of the bias of one particular judge and the plaintiffs have disagreed with that Full Court Federal Court ruling and that is one of the issues which the plaintiffs seek to ventilate in this matter. The concern is that if this matter is remitted back to the Federal Circuit Court, there are some judges who have a very high dismissal rate. This is the basis for the reasonable apprehension of bias claim.
Now, the other reason why this matter should not be remitted is because this case and many thousands of other cases turned on the issue of credibility. In my submissions, your Honour, I pointed to the comments of his Honour Justice Kirby - in the SGLB Case - who made very strident and definite directions to the Court as to how they are supposed to deal with the issue of credibility.
HER HONOUR: Mr Ford, I think this submission is directed to a submission that you have previously put – I note on occasions amongst others in an application dealt with by his Honour Justice Nettle – just bear with me one moment.
MS WONG: SZUSH, your Honour.
HER HONOUR: Yes, that is the matter - in May of last year.
MR FORD: That is right, your Honour.
HER HONOUR: When his Honour dealt with what I was subsequently to observe appeared to be a misconception in the argument that you developed in SZUSH and later before me in MZAHH respecting the analysis in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB - the same argument that has been rejected by Justice Nettle and by myself on earlier occasions is the matter central to an aspect of the relief that you claim on this occasion. Is that so?
MR FORD: That is right, your Honour. I suppose in response to that I would say that I do not accept that my views on the matter are misguided. I do not accept that these are matters – the issues which are raised by his Honour Justice Kirby are just as pertinent today as they were when you dealt with this matter; in fact, they are even more problematic.
Unfortunately, the Tribunal and the Minister have continually ignored the protestations of Justice Kirby in this regard. While I accept that the predominant legal view is that the comments of Justice Kirby are in a minority, as I have indicated in my submissions, the majority of the Court in the SGLB Case did not derogate from or did not disagree with, and in a number of other cases that have subsequently dealt with his Honour’s comments in SGLB they have not disagreed with the principles as enunciated by his Honour but they have disagreed on the facts of the particular matter.
So, the issue of credibility is an enormous issue, your Honour, and unfortunately the Tribunal and in particular the Federal Circuit Court seem to be condoning this approach that an inconsistency in the argument bases a finding that the applicant’s claims are to be rejected. As his Honour Justice Kirby has indicated, the fact that there is an inconsistency does not form a basis for the rejection of the rejection of the claims.
On 24th August 2017, Bell J remitted the matter to the Federal Circuit Court, Canberra Registry pursuant to section 44 of the Judiciary Act 1903 (Cth).
The matter came before this Court on 26th September 2017. On that occasion, Mr Ford made an oral application on behalf of his client to transfer these proceedings to Darwin. On that occasion, there was the following exchange with the Bench:
MR FORD: I have instructions to transfer this matter to Darwin. I have instructions to transfer this matter to Darwin. I haven’t commenced – or put in the papers yet to transfer the matter, because I only received instructions to transfer it about two days ago, but that may – that may be helpful to you in making a decision on this matter. But in terms of consent orders, the applicant does consent to these orders, but it just may well have changed, given the fact that this matter, in all likelihood, will be Darwin.
HIS HONOUR: How long has your client been living in Darwin?
MR FORD: Approximately six months.[10]
HIS HONOUR: So what difference does it make that the application was filed in the High Court in May? Submissions were filed in May and August. It was dealt with by Bell J in August and during all of that time your client was living in Darwin.
MR FORD: As I understand it. Yes, yes.
HIS HONOUR: But what difference, therefore, does it make whether it’s heard in this registry or some other registry, given that it seems not to have made a difference to your client living in Darwin during all of that time?
MR FORD: I don’t know.
[10] I note that in an affidavit, affirmed by the Applicant and filed on the Applicant’s behalf by the same solicitor, deposed (at par.3) that “I have lived in Darwin for 4 years”, not the six months stated by the solicitor in open Court.
HIS HONOUR: I’m just asking the question.
MR FORD: I don’t know. It just was her instruction that the matter be transferred to Darwin.[11]
[11] Court transcript (hereafter ‘T’) 26th September 2017, p. 3.
And further in relation to the filing of a formal Transfer Application, there was the following exchange:
HIS HONOUR:… So the matter of the transfer, could I suggest, subject to the application, subject to the response and subject to any brief written submissions, that I would be – I would propose dealing with the transfer application on the papers. And could I
MR FORD: Well, your Honour, I believe an application in a case is required.
HIS HONOUR: Sorry?
MR FORD: I believe an application in a case is required.
HIS HONOUR: Yes, well, that’s the – that’s what I’m alluding to or referring to with the orders previously made of a transfer application that’s done by way of application in a case within 14 days and a response 14 days thereafter, that I’ve already made those orders. And perhaps I should add these additional orders. That at the same time as the application and response is filed, there should be one page of written submissions filed at the same time. And then I would deal with the transfer application on those papers.
MR FORD: Very well.[12]
[12] T5-6.
On 26 September 2017, the following Orders were made by this Court:
[…]2. The Applicant is to file and serve a Transfer Application and accompanying written submissions of no more than 1 page in length, within 14 days from the date of these Orders, that is by close of business on 10 October 2017.
3. The Respondent is to file and serve written submissions in response to the Transfer Application of no more than 1 page in length 14 days thereafter, that is by close of business on 24 October 2017.
For completeness, also on that occasion, the solicitor made an oral Application for my recusal in this matter. Little or no detail was provided for it. I simply note that it was requested at Notation C of the Orders made on that date that “Should the Respondent seek to press this oral application for recusal, it is requested that such an application be formalised to allow the Court to formally deal with this application.” No recusal application has been filed by the solicitor.
On 10th October 2017, the solicitor filed an Affidavit on behalf of the First Applicant, affirmed on that same date. It is apposite to set it out in full given (a) its brevity and (b) in light of the comments and acknowledgement made by the solicitor in Court of the requirement for a formal application for a transfer to be filed. The First Applicant deposed as follows:
1. I am the applicant in this matter.
2. I now reside at 366 Trower Road, Tiwi in the Northern Territory of Australia.
3. I have lived in Darwin for 4 years.
Apart from this affidavit, no submissions were filed by the Applicant. Again I note the disparity in the time the First Applicant deposed to living in Darwin – 4 years, whereas in Court her solicitor, who filed the Affidavit on her behalf, said that she had resided in that city for 6 months.
The Minister filed written submissions on 24th October 2017. I have set them out in full earlier in these reasons. I need not repeat them.
Consideration & Disposition
It is clear that the Affidavit filed by the solicitor on behalf of his client is (a) not in compliance with Order 1 of this Court’s Orders of 26th September 2017 and (b) does not clearly state whether the Applicant(s) is seeking a transfer of these proceedings or not. A mere three lines stating the First Applicant’s address is not sufficient to constitute an Application for a transfer of proceedings; nor does it not make any cogent argument for (or against) this transfer. One might go so far as to say that such a flagrant disregard of this Court’s Orders, as well as the brevity of this Affidavit, tends in the direction of contempt of the Court Orders.
In all relevant respects, I accept and adopt the submissions of the Minister.
In addition to those submissions, I note the following.
First, Applicants, and the Court, are entitled to expect that legal practitioners will know relevant legal principle, be able to articulate it, and be properly, or at least reasonably, prepared for any hearing and attend Court with a copy of the Act (or relevant sections apposite to the current proceeding) and recent and or other relevant authority. This is not a counsel of perfection; we are here talking about basic legal principle, such as whether a dissenting judgment can and should be cited (let alone consistently cited) in support of a submission that has been recently rejected – and on three separate occasions – by the High Court. In my view, it is impermissible to advance a submission, as was done before the High Court in relation to the utility of the comments by Kirby J in SGLB, and which submission continues to be made in this Court. Likewise, it is impermissible in the future for any such or similar submission to be advanced in this Court.
Secondly, to advance such improper submissions (a) wastes valuable Court time, and (b) is likely to give false hope to litigants. Both of these things are improper in the conduct of litigation. Indeed, to advance argument that is unsustainable, particularly where, as here, it has been the subject of adverse comment and specific ruling on three occasions by the High Court, could amount to a breach of the lawyer’s duty to the Court as (a) an abuse of process, (b) possible misleading of the Court, and (c) failure in a lawyer’s duty to assist the Court in the applicable law and procedure.[13] This is especially the case where, as here, the lawyer holds himself out as something of an expert in the field of migration law.
[13] Generally, see G. Dal Pont, Lawyers’ Professional Responsibility (Fifth Edition) (Sydney: Lawbook Company, 2013) Chapters 17 & 18.
Thirdly, in a different matter before me, the same solicitor had Orders made against him, following submissions by the Minister, for “personal costs” as well as for him to re-pay any funds he had earlier received from the client.[14] I am unaware if there has been compliance with those adverse costs Orders. I mention this only to confirm that the conduct of the solicitor has previously been the subject of adverse comment and Orders.
[14] AXY17 v Minister for Immigration and Border Protection & Anor [2017] FCCA 2006.
Finally, in addition to the comments of the High Court in cases such as AON v ANU (cited earlier) regarding the proper use of Court resources, I note the following authority regarding the importance of the Court to regulate matters, and practitioners, before it.
It has been held that there is an implied incidental power of “a federal court to regulate the conduct of legal practitioners appearing before it to the extent necessary to ensure the observance of their duties to the court and the integrity of its procedures”.[15] The nature and source of this power was considered by French J (as his Honour then was) in De Pardo v Legal Practitioners Complaints Committee:[16]
Like the power of the court to punish for contempt, even if such power is not to be found in some express statutory provision, it has its source in Chapter III of the Constitution. Like the power to deal with contempts, it is “inherent” and is “a power of self protection or a power incidental to the function of superintending the administration of justice”.
[15] De Pardo v Legal Practitioners Complaints Committee [2000] FCA 335; (2000) 97 FCR 575 at page 595, [53]
[16] [2000] FCA 335; (2000) 97 FCR 575 at pages 595-596, [53]. This part of his Honour’s reasons was referred to with approval by Gummow J in APLA Limited v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 396 [186]
Unfortunately, after now many instances of intransigent and inappropriate submissions, and in the general poor and unhelpful conduct of matters before me, this power must now be used in relation to this legal practitioner, not least for the “self-protection” of the Court and other litigants.
Conclusion
In all of the circumstances, the Applicant’s Transfer Application must be refused, and submissions (as indicated) are to be provided within 7 days in relation to costs associated with the Court’s decision in relation to that Application.
Submissions are also sought from the Applicants’ solicitor within 7 days as to why the matter should not be referred to the Presidents of the ACT Bar Association and the ACT Law Society, and equally why he should not be enjoined from appearing in matters before me. The determination of these matters will be made on the basis of material filed and the written submissions to come. Should the Minister wish to file submission on this aspect of the matter, he should be at liberty to do so within the same time and other parameters indicated.
The substantive matter is listed for hearing on 12th June 2018 at 3pm. Hearing directions were made by consent Orders, dated 25th September 2017.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 2 March 2018
“Annexure A”
[2017] HCATrans 169
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Canberra No C7 of 2017
B e t w e e n -
PLAINTIFF C7a/2017
First Plaintiff
PLAINTIFF C7b/2017
Second Plaintiff
PLAINTIFF C7c/2017
Third Plaintiff
and
THE MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE ADMINISTRATIVE APPEALS TRIBUNAL
Second Defendant
Directions hearing
BELL J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON THURSDAY, 24 AUGUST 2017, AT 9.30 AM
Copyright in the High Court of Australia
MR H.R. FORD: Your Honour, I appear for Plaintiffs C7a, C7b and C7c. (instructed by Hugh Ford Solicitor)
MS T.L. WONG: May it please the Court, I appear for the first defendant, the Minister for Immigration and Border Protection. (instructed by Clayton Utz)
HER HONOUR: Mr Ford, you have seen the submissions from the first defendant suggesting the appropriate course is to remit the matter to the Federal Circuit Court.
MR FORD: Yes, your Honour.
HER HONOUR: Do you have anything to put in that regard?
MR FORD: Yes, I do, your Honour.
HER HONOUR: Yes.
MR FORD: Your Honour, the plaintiffs have commenced proceedings pursuant to section 75(v) of the Constitution. I should point out this is a constitutional right to seek review. While there may be a discretion as to the remedies which the Court may grant, there is a right to seek review and that right is a right to seek review by the High Court, not by the Federal Circuit Court. Now, while there may be ‑ ‑ ‑
HER HONOUR: There is, in some respects, a novel aspect to that submission, Mr Ford. The fact that proceedings are commenced in this Court to obtain the discretionary remedies that are claimed in your application to show cause may be thought to be putting it high to characterise as a right the issues in the submissions made on behalf of the first defendant are suggested not to be of the nature to engage the jurisdiction of the Court. Now, if there is something that you want to put to me in that respect that would be helpful, but I am not sure that I am greatly assisted by being told that you have a right to proceed in this Court regardless of the issues that the matter raises.
MR FORD: I accept that, your Honour, but that is the plaintiffs’ contention, that it is at that higher stage of being a right to seek review. While there may be a rule or a statute which authorises the remittal of the matter to the Federal Circuit Court, the Constitution does not contain authority or a power to remit. The power to remit comes from a statute or from the High Court Rules and if the High Court Rules were to be invoked to remit the matter then the Court would be acting beyond power because the Constitution does not contain a power to remit and here we are – the Rules are giving the Court the power to remit when that is not in the Constitution.
So if there were to be a remittal, it is the plaintiffs’ contention that that would be – the Court would be acting ‑ in simple ultra vires it would be beyond power to do that. Your Honour, I do not propose to elaborate on those things. This is simply a directions hearing and I am conscious of the fact that we have other matters which are before the Court.
HER HONOUR: Mr Ford, I have before me this morning submissions by the first defendant that the appropriate course is that I remit this matter to the Federal Circuit Court for the reasons identified in Ms Wong’s written submissions. I propose to deal with that application. I just wish that to be clear to you.
MR FORD: Yes, your Honour. The plaintiffs contend, as was indicated, that there is no authority to remit. If the Court chooses to rely on a rule or a statute to authorise that remittal then the Court – the High Court would be acting beyond power. Now, another reason why the plaintiffs do not want this matter to be remitted is because the plaintiffs have real concerns about the bias of the Federal Circuit Court. The first issue about the bias of the Federal Circuit Court ‑ ‑ ‑
HER HONOUR: Mr Ford, that is a grave allegation to make ‑ an unparticularised assertion that the members of the Federal Circuit Court are biased.
MR FORD: Well, your Honour ‑ ‑ ‑
HER HONOUR: Mr Ford, members of the profession enjoy a privilege in appearing before this Court and other courts and I just draw to your attention the need to be careful in the exercise of it.
MR FORD: Yes, your Honour.
HER HONOUR: I do not think I need elaborate on that, Mr Ford, but ‑ ‑ ‑
MR FORD: I suppose at the heart of this issue, your Honour – you are obviously aware that the Full Court of the Federal Court had reason to make – hand down its decision concerning the issue of the bias of one particular judge and the plaintiffs have disagreed with that Full Court Federal Court ruling and that is one of the issues which the plaintiffs seek to ventilate in this matter. The concern is that if this matter is remitted back to the Federal Circuit Court, there are some judges who have a very high dismissal rate. This is the basis for the reasonable apprehension of bias claim.
Now, the other reason why this matter should not be remitted is because this case and many thousands of other cases turned on the issue of credibility. In my submissions, your Honour, I pointed to the comments of his Honour Justice Kirby ‑ in the SGLB Case ‑ who made very strident and definite directions to the Court as to how they are supposed to deal with the issue of credibility.
HER HONOUR: Mr Ford, I think this submission is directed to a submission that you have previously put – I note on occasions amongst others in an application dealt with by his Honour Justice Nettle – just bear with me one moment.
MS WONG: SZUSH, your Honour.
HER HONOUR: Yes, that is the matter ‑ in May of last year.
MR FORD: That is right, your Honour.
HER HONOUR: When his Honour dealt with what I was subsequently to observe appeared to be a misconception in the argument that you developed in SZUSH and later before me in MZAHH respecting the analysis in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB ‑ the same argument that has been rejected by Justice Nettle and by myself on earlier occasions is the matter central to an aspect of the relief that you claim on this occasion. Is that so?
MR FORD: That is right, your Honour. I suppose in response to that I would say that I do not accept that my views on the matter are misguided. I do not accept that these are matters – the issues which are raised by his Honour Justice Kirby are just as pertinent today as they were when you dealt with this matter; in fact, they are even more problematic.
Unfortunately, the Tribunal and the Minister have continually ignored the protestations of Justice Kirby in this regard. While I accept that the predominant legal view is that the comments of Justice Kirby are in a minority, as I have indicated in my submissions, the majority of the Court in the SGLB Case did not derogate from or did not disagree with, and in a number of other cases that have subsequently dealt with his Honour’s comments in SGLB they have not disagreed with the principles as enunciated by his Honour but they have disagreed on the facts of the particular matter.
So, the issue of credibility is an enormous issue, your Honour, and unfortunately the Tribunal and in particular the Federal Circuit Court seem to be condoning this approach that an inconsistency in the argument bases a finding that the applicant’s claims are to be rejected. As his Honour Justice Kirby has indicated, the fact that there is an inconsistency does not form a basis for the rejection of the rejection of the claims.
HER HONOUR: Is there anything else you wish to put, Mr Ford?
MR FORD: Yes, your Honour, two more issues concerning the issue of bias. Fairly recently the Minister has sacked a number of members of the AAT, and further, the Minister has described all of the refugees who are applying for a protection visa to be fake refugees. Now, the Law Council has had reason to comment that this has the effect of ‑ ‑ ‑
HER HONOUR: Mr Ford, what is this submission going to that is relevant to the matter that I am dealing with today?
MR FORD: Well, it provides further grounds for the claim of bias, your Honour. The comments of the Minister ‑ ‑ ‑
HER HONOUR: At the moment, as I understand it, Mr Ford, there is a contention in relation to the member who determined the review of the delegate’s decision and an assertion of bias, is that so?
MR FORD: Yes, your Honour.
HER HONOUR: Telling me things that have been reported as to statements made by the Minister would seem to me to hardly bear relevantly on any contention that you might wish to make concerning the reasons why this Court would deal with the matter rather than remitting it so amongst other things any factual questions touching on some aspects of the relief that you seek might be dealt with in a court, in the Federal Circuit Court.
MR FORD: Well, as I already indicated, the plaintiff cannot be satisfied that ‑ ‑ ‑
HER HONOUR: Well, I am not ‑ Mr Ford, you have made that submission. If there is some further submission you wish to make, by all means do so.
MR FORD: Just the last thing in relation ‑ ‑ ‑
HER HONOUR: But, Mr Ford, I am not here to sit and listen to speeches concerning the Minister or other matters. Do you understand?
MR FORD: Well, I just think – yes, your Honour, I accept that totally. It is just I am saying that ‑ ‑ ‑
HER HONOUR: Yes, very well.
MR FORD: ‑ ‑ ‑ these are matters which impact on the whole way the Tribunal and the court system operates and they are very serious matters, and that is why I have raised them. I have no further submission, your Honour.
HER HONOUR: Yes, thank you, Mr Ford. Ms Wong.
MS WONG: Your Honour, two more points have been made by Mr Ford this morning. One of those is novel, it was not raised in his submissions that were filed in support of the application to show cause.
HER HONOUR: Yes.
MS WONG: That point – I will endeavour to summarise it correctly ‑ ‑ ‑
HER HONOUR: Thank you.
MS WONG: ‑ ‑ ‑ was that the right to seek review in this Court was not a right that could be delegated to another Federal Court and to remit this matter would be ultra vires. That was the nature of the submission made.
HER HONOUR: Yes.
MS WONG: Your Honour, in the matter of MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601, this Court considered the validity of a provision which placed restrictions on the ability of this Court to remit matters to the Federal Circuit Court and other courts. Their Honours Justices Gleeson, Gummow and Hayne referred to the history of the creation of courts that were able to assist the High Court to deal with matters arising in its original jurisdiction and the constitutionality of those processes, in particular, that the jurisdiction conferred on other Federal Courts is appropriately supported by section 76(ii) of the Constitution.
HER HONOUR: Yes.
MS WONG: Your Honour is no doubt familiar with all of this. Suffice to say that the power of this Court to remit is indeed squarely within the scope of its jurisdiction under the Constitution and also under the Judiciary Act under section 44. Aside from that, your Honour, the second point that Mr Ford makes has been adequately dealt with in previous decisions of this Court that your Honour referred to a moment ago, and unless your Honour has something specific that I could assist with.
HER HONOUR: Thank you, Ms Wong.
MS WONG: If I could just identify, there are short minutes of order that are at the back of the Minister’s submissions, and I did speak to Mr Ford just before we came before the Court and I said to Mr Ford if the Court was not minded to accept his application – not suggesting that there may be a particular outcome – did he have any objection to the content of those orders, and I hope Mr Ford does not mind me stating that he had no objection to those orders.
MR FORD: I have no objection, your Honour.
HER HONOUR: Thank you.
The plaintiffs commenced proceedings by an application for an order to show cause on 18 May 2017. They seek relief by way of the prerogative writs in respect of a decision of the Administrative Appeals Tribunal made on 13 April 2017 not to grant protection visas to the plaintiffs.
The Minister submits that the unparticularised grounds in the application do not raise issues of public importance such as to require the consideration of this Court and notes, in light of an allegation that the Tribunal was biased, the real prospect that issues of fact will arise for determination. In the circumstances, the Minister submits that the appropriate course is to remit the proceedings to the Federal Circuit Court under section 44 of the Judiciary Act 1903 (Cth).
That course is opposed by the plaintiffs. Mr Ford, who appears on the plaintiffs’ behalf, has submitted that they have what he characterises as a right to the relief that he claims to be determined by this Court, and that this Court would be acting beyond power in remitting the matters.
Suffice it to say that I accept the Minister’s submissions as to why that contention is misconceived and I reject it. I accept that nothing in the way the issues are framed suggests that it is appropriate for the matter to remain in this Court. I accept that there is a real prospect that issues of fact will arise for determination in relation to one aspect of the relief claimed. The appropriate course is to remit the proceedings to the Federal Circuit Court and I make the following orders:
1.The application be remitted to the Federal Circuit Court of Australia, Australian Capital Territory Registry, pursuant to section 44 of the Judiciary Act1903 (Cth).
2.The Deputy Registrar of this Court is to forward to the proper officer of the Federal Circuit Court of Australia copies of all documents filed in this Court.
3.The costs of the application in this Court are costs in the cause.
The Court will adjourn.
AT 9.51 AM THE MATTER WAS CONCLUDED
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