Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 863

FEDERAL COURT OF AUSTRALIA

Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 863

PRACTICE AND PROCEDURE – appeal – unrepresented appellant – motion to amend grounds of appeal – to require authenticated transcript – for leave to issue subpoenas – no basis for orders – motion dismissed – access to tapes of hearing directed – notice of errors in transcript to be given in advance of appeal hearing.

OLGA DRANICHNIKOV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Q34 OF 2002

FRENCH J
4 JULY 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q34 OF 2002

BETWEEN:	OLGA DRANICHNIKOV APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	4 JULY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appellant be given access to copies of the sound recordings of the proceedings before Baumann FM within seven days. 

2.The District Registrar at Brisbane be directed to make arrangements to enable Mrs Dranichnikov to listen to the sound recordings in the Court precinct.

3.If the appellant alleges that there is any part of the transcript of the proceedings before Baumann FM which is incorrect and is material to her appeal, she is to prepare a list of those items and file it with the Court and deliver a copy to the respondent by 13 August 2002. 

4.        The motion be dismissed.

5.        The appellant pay the respondent’s costs of the motion.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 34 OF 2002

BETWEEN:	OLGA DRANICHNIKOV APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	4 JULY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On 18 February 2002, Baumann FM dismissed an application brought by Olga Dranichnikov against the Department for Immigration and Multicultural Affairs claiming relief in respect of alleged sex discrimination by officers of the Department.  No doubt the proper respondent was the Minister and that does appear to have been cured in the heading to the present appeal. 

2. On 8 March 2002, Mrs Dranichnikov filed a notice of appeal against the magistrate’s decision in this Court.  An amended notice was filed on 19 March.  On 23 April 2002, Mrs Dranichnikov filed a motion seeking a number of orders in relation to the appeal which is presently listed for hearing in the August sittings of the Full Court in Brisbane.  By that motion she seeks orders which may be summarised thus: 

   1.        That she have leave to amend the notice of appeal;

   2.That the execution of a costs order made by Baumann FM on 16 April 2002 be stayed;

   3.That she have leave to appeal from an interlocutory decision of Baumann FM in respect of a decision of the Registrar of the Federal Magistrates Court denying her access to an authenticated transcript of the hearing of her application before him on 25 September 2001;

   4.That she have leave to issue subpoenas to the Minister for Immigration and Multicultural and Indigenous Affairs, the Secretary of the Minister’s department, and an officer of the Department at Brisbane;

   5.That the proceedings in the appeal be stayed until the issues raised by the motion are resolved and an authenticated transcript provided.

3. The motion came before Spender J on 1 May 2002 in Brisbane. He directed that the question whether leave be granted to amend the appeal be adjourned to the hearing of the appeal itself. The appeal is listed for hearing before a Full Court of which I will be a member. Under subs 25(2)(a) of the Federal Court of Australia Act 1976 (Cth) a single judge of the Court may hear and determine an application for leave to amend the grounds of appeal to the Court. The proposed amendments would seek orders expressed in the minute thus:

   “-to reinstate subclass “Members of the Families Unit of the Applicants for a protection visa” by readjusting the Migration Regulations 1994 with provisions of s 36 of the Migration Act 1958 and the 1951 Refugees Convention;.

   -The Respondent should be prosecuted for the offences committed against the Appellant for victimisation;

   for providing false and misleading information to the HREOC, the High Court of Australia (applications for special leave to appeal made 17 August 2001, matter B61/2001) and to the Senate Legal and Constitutional References Committee in relation to the bar of family members from assessment refugees claims in their own rights (the Migration Legislation Amendment Bill No 6 2001, s 48A of the Act)-  in full meaning of ss 93, 94 and 105 of the Sex Discrimination Act 1984 and s 46PN of the HREOC Act 1986.”

4. Neither of these proposed amendments discloses a viable ground of appeal or relief which can be directed by the Court.  The Court cannot give directions to a Minister to make regulations in a particular form; nor can the Court entertain a contention that a party should be prosecuted for what are apparently said to be criminal offences.  The pursuit of these grounds at the hearing of the appeal before the Full Court would be a waste of time.  The amendments proposed are disallowed.

5. The second order sought in the motion is an order for a stay of execution of the costs order made by Baumann FM.  This is unnecessary, as a formal undertaking has been given by the respondent not to pursue costs until after the hearing and determination of the appeal.

6. The third order is collateral to the appeal and is, in any event, misconceived.  No authentication of the transcript is required.  If there is an issue about its correctness on some material matter that could have been raised with the Registrar following examination of the transcript by Mrs Dranichnikov.  She has been offered the opportunity to take a copy of the Court’s transcript and has declined it.  The order sought in paragraph 3 of the motion is denied.  However, as I indicated in the course of argument, I would be prepared to make a direction that tapes of the sound recording of the proceedings before Baumann FM should be made available to Mrs Dranichnikov so that she can listen to them and if there is any area of material error or inaccuracy in the transcript, she should identify that well in advance of the hearing of the appeal and give notice of that error or inaccuracy to the respondent. 

7. There is no basis shown upon which the subpoenas sought in order 4 should issue.  The appeal will proceed on the basis of the materials before the magistrate.   The fifth order sought in the motion was not pursued as it has become academic by reason of the hearing of the motion.

8. For the preceding reasons, the motion will be dismissed.  I will, however, make the following directions with respect to the transcript and the tapes:

   1.The appellant be given access to copies of the sound recordings of the proceedings before Baumann FM within seven days. 

   2.The District Registrar at Brisbane be directed to make arrangements to enable Mrs Dranichnikov to listen to the sound recordings in the Court precinct.

   3.If the appellant alleges that there is any part of the transcript of the proceedings before Baumann FM which is incorrect and is material to her appeal, she is to prepare a list of those items and file it with the Court and deliver a copy to the respondent by 13 August 2002. 

   4.        The motion be dismissed.

   5.        The appellant pay the respondent’s costs of the motion.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Acting Associate:
Dated:             July 2002

The Appellant appeared in person by video.
Counsel for the Respondent:	Mr M Belcher
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 July 2002
Date of Judgment:	4 July 2002