Desai v Keelty
[2009] FCA 317
•30 March 2009
FEDERAL COURT OF AUSTRALIA
Desai v Keelty [2009] FCA 317
PRACTICE AND PROCEDURE – motion – whether motion bound to fail
LYDIA DESAI and PRISCILLA D'SOUZA v MR MIKE J KEELTY, COMMISSIONER, AUSTRALIAN FEDERAL POLICE, COMMONWEALTH OF AUSTRALIA THROUGH PRIME MINISTER MR KEVIN RUDD and MR ANDREW METCALFE, SECRETARY, IMMIGRATION AND CITIZENSHIP DEPARTMENT
VID 904 of 2008
NORTH J
30 MARCH 2009
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 904 of 2008
BETWEEN: LYDIA DESAI
First ApplicantPRISCILLA D'SOUZA
Second Applicant
AND: MR MIKE J KEELTY, COMMISSIONER, AUSTRALIAN FEDERAL POLICE
First RespondentCOMMONWEALTH OF AUSTRALIA THROUGH PRIME MINISTER MR KEVIN RUDD
Second RespondentMR ANDREW METCALFE, SECRETARY, IMMIGRATION AND CITIZENSHIP DEPARTMENT
Third Respondent
JUDGE:
NORTH J
DATE OF ORDER:
30 MARCH 2009
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The motion, notice of which was given by the applicants on 26 March 2009, is dismissed.
2.The directions hearing is adjourned to 10.15 am on 27 April 2009.
3.The applicants are to file and serve any further affidavits upon which they intend to rely in support of their application by 17 April 2009.
4.Costs reserved.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 904 of 2008
BETWEEN: LYDIA DESAI
First ApplicantPRISCILLA D'SOUZA
Second Applicant
AND: MR MIKE J KEELTY, COMMISSIONER, AUSTRALIAN FEDERAL POLICE
First RespondentCOMMONWEALTH OF AUSTRALIA THROUGH PRIME MINISTER MR KEVIN RUDD
Second RespondentMR ANDREW METCALFE, SECRETARY, IMMIGRATION AND CITIZENSHIP DEPARTMENT
Third Respondent
JUDGE:
NORTH J
DATE:
30 MARCH 2009
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This application was before the Court on 2 March 2009 for directions. On that occasion, the Court directed the applicants to serve a document by 16 March 2009, no longer than two pages, setting out the orders which they seek from the Court, including the persons against whom the orders are sought, and a very brief reference to the facts on which they relied to claim each of the orders. This direction was not complied with. Rather, the applicants filed a motion, notice of which was given on 26 March 2009 against the respondents, claiming the issue of a writ of mandamus against the Commonwealth to issue immediate provisional arrest warrants against a number of named judges and officials of the Supreme Court of India, and further writs of mandamus against the Commonwealth requiring it to petition the United Nations to establish an international tribunal in India, UN peacekeeping mission and to intervene to restore the BOSS Education System.
The failure of the applicants to file the required short statement of the legal basis of their claim has left it in confusion. Furthermore, the motion of 26 March 2009 was short served, and at least the first respondent was not in a position to obtain instructions about the contents of the affidavit in support. In order to understand the need for urgent relief which the applicants claim, the Court asked Ms Lydia Desai, the first applicant who speaks on behalf the second applicant, to explain what was sought as a matter of immediate relief. Ms Desai responded by asking for a declaration of genocide. By this, it is understood that the applicants seek that the Court declare that the alleged persecution of the staff and students of the BOSS School in India by the Indian judiciary amounts to a genocide.
There are of course good grounds for adjourning the motion so that the first respondent can obtain instructions on his response. However, it is clear on the face of the motion that it is bound to fail and accordingly it is best for the Court to dispose of it immediately.
Dr Donaghue, counsel for the second and third respondents, contended that the declaration which is sought could not be made for two reasons. First, it could not be made because, assuming the evidence established a genocide in India, there was no infringement of a legal right in Australia which would support the making of such a declaration. Secondly, Dr Donaghue contended that the Court simply had no jurisdiction to rule upon the acts of sovereign states.
Both of these propositions are correct and mean that the declaration, even assuming the acts alleged in the affidavit in support were established, could not be granted. The motion will therefore be dismissed.
The respondents have indicated that they are presently giving attention to bringing an application to strike out the applicants’ application on the basis that it discloses no cause of action. Such a motion should be filed by 27 April 2009, the date to which the directions will be adjourned. Should the respondents file the foreshadowed motion by 27 April, further directions on that motion will be made prior to or on that occasion.
By 17 April 2009, the applicants are to file and serve any further affidavits upon which they intend to rely in support of the underlying application.
Finally, I have drawn the attention of the applicants to the inaccuracy of a number of passages in the affidavit of the first applicant sworn on 26 March 2009, and in particular to parts of paragraphs 1 and 16. In those passages, the first applicant complains about certain conduct of the Court. The Court had sought to explain that each of the matters raised were done in an attempt to assist the applicants. The first was the reference by the Court of the applicants to pro bono legal counsel. This was done in an attempt to assist the applicants frame their complaints in a form which could be properly considered by the Court. Secondly, the Court made directions requiring the applicants to define with precision the legal basis upon which they brought their claim. This, again, was designed to assist in obtaining for the applicants any relief to which they were legally entitled. They chose to refuse to comply with that direction.
It is important for the applicants to understand, and for the public record to reflect, that far from being illustrations of what the applicants say is a failure of the Australian legal system, they were, on the contrary, attempts by the Australian legal system to give proper, just and fair minded assistance and aid to unrepresented applicants who have a strong sense of the correctness of their cause. The applicants must, however, understand that the Court is bound by the law in Australia and can grant relief only in terms of the jurisdiction which the Court possesses.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 30 March 2009
Counsel for the Applicants: The first applicant appeared in person and on behalf of the second applicant Counsel for the First Respondent: Mr E De Zilwa Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second and Third Respondents: Dr S Donaghue Solicitor for the Second and Third Respondents: Australian Government Solicitor
Date of Hearing: 30 March 2009 Date of Judgment: 30 March 2009
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