Fernando v Minister for Immigration and Citizenship (No 8)
[2009] FCA 1035
•30 JUNE 2009
FEDERAL COURT OF AUSTRALIA
Fernando v Minister for Immigration and Citizenship (No 8) [2009] FCA 1035
WANNAKUWATTEMITWADUGE LLOYD NIRMALEEN FERNANDO BY HIS TUTOR JOHN ROBERT BRODERICK LEY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and HONOURABLE GARY HARDGRAVE, FORMER ACTING MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and COMMONWEALTH OF AUSTRALIA
WAD 111 of 2007
SIOPIS J
30 JUNE 2009
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 111 of 2007
BETWEEN: WANNAKUWATTEMITWADUGE LLOYD NIRMALEEN FERNANDO BY HIS TUTOR JOHN ROBERT BRODERICK LEY
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentHONOURABLE GARY HARDGRAVE, FORMER ACTING MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Second RespondentCOMMONWEALTH OF AUSTRALIA
Third Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
30 JUNE 2009
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The first, second and third respondents be permitted to attend the mediation conference on 3 July 2009 by their representatives, Layton David Evans of the Department of Immigration and Citizenship, and Russell Williams of Comcover Member Services.
2.The first, second and third respondents’ representatives, Layton David Evans and Russell Williams, be permitted to attend the mediation conference on 3 July 2009 by telephone.
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 eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 111 of 2007
BETWEEN: WANNAKUWATTEMITWADUGE LLOYD NIRMALEEN FERNANDO BY HIS TUTOR JOHN ROBERT BRODERICK LEY
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentHONOURABLE GARY HARDGRAVE, FORMER ACTING MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Second RespondentCOMMONWEALTH OF AUSTRALIA
Third Respondent
JUDGE:
SIOPIS J
DATE:
30 JUNE 2009
PLACE:
PERTH
REASONS FOR JUDGMENT
The issue between the parties is who should represent the respondents at an upcoming mediation conference, and whether those persons attend the conference in person. The mediation conference, which has been set down for 3 July 2009, is not the first mediation conference. There have been two previous mediation conferences.
The applicant contends that I should make orders that the first respondent, who is the Minister for Immigration and Citizenship, and the second respondent, who was formerly the Acting Minister for Immigration and Multicultural and Indigenous Affairs, should be represented at the resumed mediation by a person of sufficient seniority and authority, to settle issues between the parties on each of their behalves. That representative, it is said, should attend in person.
The respondents seek orders that they be permitted to attend the mediation conference on 3 July 2009, by their representatives, Mr Layton David Evans of the Department of Immigration and Citizenship and Mr Russell Williams of Comcover Members Services (Comcover) and that these two gentlemen be permitted to attend the mediation conference by telephone.
Mr Evans has sworn an affidavit saying that he is the senior legal officer in the Department of Immigration and Citizenship and that he is the officer who, in conjunction with Mr Williams, provides instructions to the respondents’ legal representatives on all issues in this proceeding.
Mr Williams has deposed in his affidavit that he is the team manager, claims, for Comcover, the insurer of the third respondent, and that he is the officer who provides instructions to the respondents’ legal representatives on all issues in this proceeding.
Counsel for the applicant, Dr Cameron, has referred to the Federal Court Rules in relation to mediation conferences and, in particular, to O 72 r 7 of the Rules which provides that:
7(1)A mediation conference must be conducted:
(a)in accordance with any directions given by the Court or a judge; and
(b)as a structured process in which the mediator assists the parties by encouraging and facilitating discussion between the parties so that:
(i)they may communicate effectively with each other about the dispute; and
(ii)if agreement is reached and if the parties consent, the agreement can be included in a consent order under Order 35, rule 10.
7(2)If part only of proceedings before the Court is the subject of a mediation order, the mediator may, on the conclusion of the mediation, report back to the Court in terms agreed between the parties.
Normally for a mediation to be effective, where the settlement of the proceeding is in the offing or is possible, it will be necessary that the parties attend the mediation personally, or, if one of the parties is a corporation, for it to attend by a representative with sufficient authority to agree to settle the proceeding.
In this case, however, the evidence appears to be that there is no realistic prospect of this matter being settled at the mediation conference which is due to be held on 3 July 2009. It appears to be common cause that the best that the mediation conference can achieve is that the issues for the trial are reduced and that costs and expenses associated with conducting a trial of three days, are reduced to a trial of one day.
It is accepted by both sides that it is not necessary or, indeed, practical, for each of the first and second respondents to attend the mediation conference in person. Dr Cameron’s submission, really is that a person with a sufficient knowledge and authority, who is representing the first and second respondents, should attend so that he or she can make, at the conference, such concessions as are necessary, to reduce the matters in dispute.
In my view, the person who has the authority to make the relevant concessions would appear to be Mr Evans. He is, on the evidence, the legal representative of the first two respondents. No doubt he would need to take instructions if there are questions of fact, from the actual persons involved before making those concessions, but by reason of being a legal practitioner, he would have the apparent authority of his clients to make concessions on their behalf.
Accordingly, there is no obstacle to making the first order, which is sought by the respondents, namely, that the respondents attend the mediation conference by their representatives, Mr Evans and Mr Williams.
The remaining issue, then, is whether there is any utility in requiring that Mr Evans, attend the mediation conference in person.
For the following reasons, I will not order that Mr Evans attend the mediation conference personally in Perth. Mr Evans is located in Canberra and it would put the Commonwealth to expense if Mr Evans was to fly to Perth to attend the mediation conference. Further, as already mentioned, it is common cause that the mediation conference is not directed towards effecting an overall settlement, but is directed towards agreeing issues. In any event, it may be that Mr Evans may be required to take instructions from his clients and, therefore, the process will not be impeded by him being in Canberra.
In my view, it will be sufficient if Mr Evans and Mr Williams attend the mediation conference by telephone.
By accepting the contentions of the Commonwealth on this matter, I do not mean to undermine the importance of mediation conferences as a means of reducing the issues. The Commonwealth is a model litigant and no doubt will act in accordance with its status as such at the mediation conference.
In those circumstances, I will make orders in terms of the respondents’ proposed minute of directions.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 15 September 2009
Counsel for the Applicant: Dr JL Cameron Solicitor for the Applicant: Lavan Legal Counsel for the Respondents: Mr P Macliver Solicitor for the Respondents: Australian Government Solicitor
Date of Hearing: 30 June 2009 Date of Judgment: 30 June 2009
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