Fernando v Commonwealth of Australia (No 2)
[2010] FCA 851
•28 July 2010
FEDERAL COURT OF AUSTRALIA
Fernando v Commonwealth of Australia (No 2) [2010] FCA 851
Citation: Fernando v Commonwealth of Australia (No 2) [2010] FCA 851 Parties: WANNAKUWATTEMITIWADUGE LLOYD NIRMALEEN FERNANDO BY HIS TUTOR JOHN ROBERT BRODERICK LEY
v
COMMONWEALTH OF AUSTRALIA and THE HONOURABLE GARY HARDGRAVE, FORMERLY ACTING MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRSFile number: WAD 111 of 2007 Judge: SIOPIS J Date of judgment: 28 July 2010 Date of hearing: 28 July 2010 Place: Perth Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 9 Counsel for the Applicant: Mr JL Cameron Solicitor for the Applicant: Lavan Legal Counsel for the Respondents: Mr PR Macliver
Solicitor for the Respondents: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 111 of 2007
BETWEEN: WANNAKUWATTEMITIWADUGE LLOYD NIRMALEEN FERNANDO BY HIS TUTOR JOHN ROBERT BRODERICK LEY
Applicant
AND: COMMONWEALTH OF AUSTRALIA
First RespondentTHE HONOURABLE GARY HARDGRAVE, FORMERLY ACTING MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
28 JULY 2010
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The time within which the parties may appeal, or file and serve a notice of motion seeking leave to appeal, from the judgment of 21 July 2010, is extended to 28 days after the pronouncement of the final judgment in the matter, including any judgment for costs.
2.The hearing at 10:15 am on 3 August 2010 be adjourned provisionally to 10:15 am on 6 September 2010.
3.Costs are 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 Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 111 of 2007
BETWEEN: WANNAKUWATTEMITIWADUGE LLOYD NIRMALEEN FERNANDO BY HIS TUTOR JOHN ROBERT BRODERICK LEY
Applicant
AND: COMMONWEALTH OF AUSTRALIA
First RespondentTHE HONOURABLE GARY HARDGRAVE, FORMERLY ACTING MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Second Respondent
JUDGE:
SIOPIS J
DATE:
28 JULY 2010
PLACE:
PERTH
REASONS FOR JUDGMENT
This is an application by the respondents for an extension of time within which to appeal against the judgment in this matter delivered on 21 July 2010 (Fernando v Commonwealth of Australia [2010] FCA 753). The judgment was to the effect that the first and second respondents should pay the applicant damages. However, on 21 July 2010, I adjourned to a date to be fixed the question of exemplary damages and aggravated damages. This is because I thought it advisable to hear the parties further on those questions in light of an English Court of Appeal decision, decided after judgment in this case had been reserved, which had come to my attention, and in which the Court of Appeal considered some issues similar to those arising in this case.
The reason why this notice of motion is brought is that the respondents have taken the view that the judgment which I delivered is arguably interlocutory, and, therefore, the time for the filing of an appeal in relation to the orders which I have already made would, arguably, also expire today. The notice of motion seeks an order extending the time within which to bring any application for leave to appeal against those orders, and also extending the time within which to appeal against the final judgment, until 28 days after the pronouncement of the final judgment.
Dr Cameron, counsel for the applicant, has pointed to the provisions of s 24(1E) of the Federal Court of Australia Act 1976 (Cth), and contended that I should not make the orders sought by the respondents because they are not necessary. Section 24(1E) provides as follows:
The fact that there has been, or can be, no appeal from an interlocutory judgment of the Court in a proceeding does not prevent:
(a)a party from founding an appeal from a final judgment in the proceeding on the interlocutory judgment; or
(b)the Court from taking account of the interlocutory judgment in determining an appeal from a final judgment in the proceeding.
I propose to make the orders sought by the respondents simply out of an abundance of caution. In that way, the making of the orders will preclude any argument as to the proper construction of s 24(1E). In my view, this is desirable because it avoids future conflict.
Dr Cameron also contended that it was unnecessary for me to make the order extending the period of time for 28 days rather than 21 days after the date of the final judgment. Mr Macliver, counsel for the respondents, has argued for that extension on the basis that the case is unusual and it may be necessary for input to be obtained from persons in the Department of Immigration and Citizenship, and maybe the Department of Prime Minister and Cabinet, in relation to the question of an appeal.
In my view, the extension of 28 days is warranted. I accept Mr Macliver’s contention. The issues in this case are unusual, in the sense that they go to the conduct of senior departmental officers and a former Minister.
Mr Macliver has said that he does not object to the applicant having a similar period within which to seek leave to appeal, or to bring any appeal.
I also observe that I had proposed to set down for argument the question of exemplary damages and aggravated damages and costs for 3 August 2010. However, Mr Macliver has brought to my attention Guidance Note No 6, Handling litigation involving the Commonwealth during the caretaker period (Office of Legal Services Coordination, Attorney-General’s Department, Canberra, 2008) and has asked that the hearing of the exemplary damages and aggravated damages argument be adjourned until after 21 August 2010 – the date of the Federal election. Dr Cameron does not oppose that proposed course of action.
For these reasons, I will make the order sought in the amended notice of motion, except that I will substitute the words “the first and second respondents” with the words “the parties”.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 11 August 2010
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