Fernando v Minister for Immigration & Ors (No.2)
[2007] FMCA 944
•16 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FERNANDO v MINISTER FOR IMMIGRATION & ORS (No.2) | [2007] FMCA 944 |
| MIGRATION – Allegations in relation to detention – alleged unlawful events – application for compensation in relation to unlawful events in detention – jurisdiction to hear application in relation to unlawful events in detention – no jurisdiction to award compensation. ADMINISTRATIVE LAW – Whether decision under an enactment – no decision under an enactment. PRACTICE AND PROCEDURE – Whether to make order for referral for pro bono assistance – discretion – no assistance forthcoming from prior referral – similarity of issues to prior case where no assistance forthcoming – possibility of similar outcome to prior case dismissed for want of jurisdiction – no pro bono referral ordered. PRACTICE AND PROCEDURE – Application for transfer to Federal Court – factors to be considered – pending proceedings in associated matter in Federal Court – question of general importance – interests of administration of justice – transfer application refused. PRACTICE AND PROCEDURE – Application for appointment of litigation guardian – no purpose or utility in appointment where no jurisdiction and no transfer to Federal Court. |
| Acts Interpretation Act, 1901 (Cth), s.15C Administrative Decisions (Judicial Review) Act, 1977 (Cth), ss.3(1), 5,6 Constitution, para 75(v) Federal Magistrates Act, 1999 (Cth), ss.10(1), 18, 19(1) and (3), 39(1),(2),(3) and (6) Federal Magistrates Court Rules, 2001 (Cth), Division 11.2, rr.8.02(2) and (4), 12.01(1), 12.03(1), 13.03(2), 16.05(2), 42.03 Migration Act, 1958 (Cth), s.476(1) |
Bartucciotto v Western Health Care & Ors (2007) 94 ALD 387; [2007] FMCA 26
Fernando v Minister for Immigration [2007] FMCA 724
Genovese v BGC Construction Pty Ltd [2006] FMCA 1507
Goldie v Commonwealth of Australia & Ors (2002) 188 ALR 708; [2002] FCA 433
Goldie v Commonwealth of Australia & Ors(No.2) [2004] FCA 156
IN PEG72 of 2007
| Applicant: | WANNAKUWATTEMITIWADUGE LLOYD NIRMALEEN FERNANDO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | GLOBAL SOLUTIONS |
| Third Respondent: | POLICE DEPARTMENT OF SOUTH AUSTRALIA |
| File Number: | PEG 72 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 15 June 2007 |
| Date of Last Submission: | 15 June 2007 |
| Delivered at: | Perth |
| Delivered on: | 16 July 2007 |
REPRESENTATION
| Applicant: | Appeared in Person |
| Counsel for the First Respondent: | Mr A Gerrard |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | Mr J D MacLaurin |
| Solicitors for the Second Respondent: | Wisewoulds Lawyers |
| Counsel for the Third Respondent: | Ms L Eddy |
| Solicitors for the Third Respondent: | Crown Solicitor for South Australia |
IN PEG 87 of 2007
| Applicant: | WANNAKUWATTEMITIWADUGE LLOYD NIRMALEEN FERNANDO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | GLOBAL SOLUTION |
| Third Respondent: | STATE OF SOUTH AUSTRALIA |
| Fourth Respondent: | MANAGER BAXTER IMMIGRATION DETENTION FACILITY |
| File Number: | PEG 87 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 15 June 2007 |
| Date of Last Submission: | 15 June 2007 |
| Delivered at: | Perth |
| Delivered on: | 16 July 2007 |
REPRESENTATION
| Counsel for the First Respondent: | Mr A Gerrard |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | Mr J D MacLaurin |
| Solicitors for the Second Respondent: | Wisewoulds Lawyers |
| Counsel for the Third Respondent: | Ms L Eddy |
| Solicitors for the Third Respondent: | Crown Solicitor for South Australia |
| Counsel for the Fourth Respondent: | No appearance |
| Solicitors for the Fourth Respondent: | None on record |
ORDERS
IN PEG 72 of 2007
The application be dismissed for want of jurisdiction.
The Applicant to pay the costs of each of the First, Second and Third Respondents.
That the Applicant’s applications for:
(a)a litigation guardian to be appointed;
(b)referral to a Registrar for pro-bono assistance;
(c)this application to be heard in conjunction with PEG 43 OF 2007; and
(d)transfer of the proceedings to the Federal Court,
be dismissed.
IN PEG 87 of 2007
The application be dismissed:
(a)for want of jurisdiction; and
(b)further, in relation to the Second, Third and Fourth Respondents for failure to comply with the Court’s order made on 21 May 2007 that the application and supporting affidavit be served upon those respondents by no later than 4pm on 28 May, 2007.
The Applicant to pay the costs of each of the First, Second and Third Respondents.
That the Applicant’s applications for:
(a)a litigation guardian to be appointed;
(b)referral to a Registrar for pro-bono assistance;
(c)this application to be heard in conjunction with PEG 43 of 2007; and
(d)transfer of the proceedings to the Federal Court,
be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 72 of 2007
| WANNAKUWATTEMITIWADUGE FERNANDO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| GLOBAL SOLUTIONS |
Second Respondent
| STATE OF SOUTH AUSTRALIA |
Third Respondent
PEG 87 of 2007
| WANNAKUWATTEMITIWADUGE FERNANDO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| GLOBAL SOLUTIONS |
Second Respondent
| POLICE DEPARTMENT OF SOUTH AUSTRALIA |
Third Respondent
| MANAGER, BAXTER IMMIGRATION DETENTON FACILITY |
Fourth Respondent
REASONS FOR JUDGMENT
Introduction
There are two applications before the Court: PEG 72 of 2007 and PEG 87 of 2007. Both applications relate to the Applicant’s alleged unlawful detention in the Baxter Immigration Detention Facility (“Baxter IDF”), and certain alleged unlawful events during the Applicant’s detention. There are objections to jurisdiction in relation to both the applications, and on one application (PEG 87 of 2007) there are objections to appearance by the Second and Third Respondents on the basis that they have not been served, contrary to orders of this Court.
The objections to jurisdiction in both applications were heard together on 15 June 2007 as ordered by this Court on 21 May 2007, and the objections to appearance were also heard on 15 June 2007.
In Fernando v Minister for Immigration[1] this Court found that an earlier application by the same Applicant was not within the jurisdiction of the Court.[2] The application in Fernando was an application for the Court to hear a claim in tort for false imprisonment arising out of immigration detention of the Applicant, in circumstances where there was no claim within the Court’s primary jurisdiction.[3] It is common ground that the decision in Fernando is under appeal by the Applicant (“Applicant’s Appeal”) in the Federal Court of Australia (“Federal Court”).
[1] [2007] FMCA 724 (“Fernando”).
[2] Fernando at paras. 41, 43 & 44 per Lucev FM.
[3] Fernando at para. 41 per Lucev FM.
The Application and subsequent Court orders – PEG 72 of 2007
The application in PEG 72 of 2007 was filed on 16 April 2007.
The application indicates that it is an application under the Administrative Decisions (Judicial Review) Act, 1977 (Cth) (“ADJR Act”), the Migration Act, 1958 (Cth) (“Migration Act”) and “Other”.[4]
[4] These are the boxes that are crossed on the common form application for this Court.
The application seeks interim orders as follows:
“1.Application for courts to seek whatever information from Hon. Commonwealth Ombudsman, Federal Police or any other.
2. Application for courts to order whatever investigation required; and then acquire relevant information.
3. Application to allow file: REG. 43/2007 filed on the 19 March 2007; and this file to be handle by the same councillor (pro bono); if not possible a different pro bono councillor to be appointed on behalf of the applicant.
4.Application to make the letter and its enclosures to Hon. Commonwealth Ombudsman not available to the respondent’s until an investigation’s that would be ordered by the Federal Court is over or until the Federal Court decides the appropriate time for such.”
(Transcribed from original without amendment).
The final orders sought by the Applicant are as follows:
“1.Application to consider the current (this file) in conjunction with the file: REG. 43/2007 filed on the 19th March 2007; or otherwise
2.Application to take into consideration all information in the letter dated 03rd April 2007, to Hon. Commonwealth Ombudsman; and all its enclosures
3.Application for compensation and action on behalf of the Applicant; and or of the interest of administration of justice system:
(a) against the attempt of Baxter IDF’s management to invade or put itself in a situation, where it could invade privacy of detainee documents and information by acquire administrative privileges of detainee computers at the educational centre of Baxter IDF [please note: their policy is neither DIMA, nor GSL were allowed to read detainee documents].
(b) against failure of Baxter IDF management to take measures against GSL staff member, David Brown, who interfered and assaulted, physically, the applicant, while the applicant was attending to his meaningful activity on detainee computers. Mr David browns actions were out of order (please, refer the audio files (“VOC 008””VOC 009”) of the enclosed CD of my letter, dated 03rd April 2007, to Hon. Commonwealth Ombudsman; and listen to what the GSL officer Mohamed who eye witnessed the incident, had to say).
(c) Against the failure of Baxter IDF’s management to take measures against GSL Staff member, David Brown, who failed to alert the Baxter IDF’s control in time, which would have brought the security cameras into focus.
(d) Against the negligence of Baxter’s IDF’s management in its operation of surveillance equipment; and thereby failing to capture an incidents that occurred outdoors.
(e) Against the failure of Baxter IDF’s management to take measures against the GSL staff member, David Brown who failed to comply with the applicant’s request to inform, “blue chairs” (the management of Baxter IDF), that the applicant was bringing to it a detainee computer box (please, refer to audio files (“VOC 006”) of the enclosed CD of my letter, dated 03rd April 2007 to Hon. Commonwealth Ombudsman).
(f) Against the failure of Baxter IDF’s police officer, to come and see the applicant in time despite applicant’s direct requests (please refer to the audio files (“VOC 006”) of the enclosed CD of my letter, dated 03rd April 2007 to Hon. Commonwealth Ombudsman).
(g) Against the failure of Baxter IDF’s police, to take action (or measures) against the GSL staff member, David Brown.
(h) Against the failure of Baxter IDF’s police to position itself in an independent environment, or agreeing to continue working in such an environment.
(i) Against the failure of Baxter IDF’s management in not providing an independent environment to the police, that was supposed to act independently.
[Please note the following with regard to (h) and (i): (1) It would not be appropriate to have police from an area where officers and other administrative figures of Baxter IDF come from, to deal with matters involving bunch of detainees, who were/are basically aliens. (2) It would not be appropriate to position the general workplace of police within the same enclosures as those of management figures of Baxter IDF. (3) It would not be appropriate to position the general workplace of the police, where the police were more likely to receive coffee, tea, drinks, and food from, either DIMA or GSL staff members]
(j) Against the failure of Baxter IDF’s management to put itself or conduct itself in a manner that appears that its members were independent. The nepotism at Baxter IDF was astronomically high.
[Please note the following with regard to (j): (1) As far as I the applicant was aware, the GSL manager of Baxter IDF had his wife working at the same place: she appeared to be the compliance manager. (2)David Brown, the GSL officer, who assaulted the applicant, had both his sister and his nephew working at Baxter IDF: his sister was the detainee case co-ordinator; and his nephew (the sister’s son) was a GSL officer. (3) Apart from the fact that there were many cases of similar in nature to just above; I, the applicant, was told by Officer David Brown that Port Augusta’s community was a very close community, and nearly every officer was related to each other]
(k) Against the punitive measures taken against the applicant by Baxter IDF’s management by stopping the applicant from his meaningful activity on detainee computers; and stopping the applicant entering the educational centre. The applicant did face the band until the applicant left the immigration detention on 18th January 2007.
(l) Against Baxter IDF’s management for allowing the GSL officer David Brown, whose conduct was out of order, to work in the educational centre, while the applicant was band from entering the educational centre.
(m) Against Baxter IDF’s management not taking preventative measures on behalf the applicant, who was under its duty of care; and allowing problems between GSL officer, David Brown, and the applicant to escalate [prior to the incident on 22 November 2007, there were two other incidents: one on the 08th November 2007; and the other on the 12th November 2007. The details of these prior incidents can be found by the documents enclosed in the letter dated 03rd April 2007, to Hon. Commonwealth Ombudsman.]
(Transcribed from original without amendment).
On 11 May 2007 the First Respondent (the Minister for Immigration and Citizenship) filed a response objecting to jurisdiction. The First Respondent said as follows:
“(1)On 18 April 2007 the Applicant filed an application in the Federal Magistrates Court, purportedly under the Migration Act, 1958 (the Act). The application seeks various orders including compensation.
(2)It is difficult to discern with any certainty what is being sought by the applicant.
(3)The Act confers jurisdiction on the Federal Magistrates Court to judicially review certain decisions made under the Act.
(4)The orders sought by the applicant do not relate to decisions of the respondent which are reviewable under the Act in this Court.”
On 14 May 2007 the Court made orders that the First Respondent’s objection to jurisdiction be adjourned to 15 June 2007 for hearing, and that the First, Second and Third Respondents and the Applicant file and serve outlines of submissions in respect of the objection to jurisdiction.
Submissions objecting to jurisdiction – PEG 72 of 2007
The First Respondent submits that the jurisdiction of the Court is found in s.10 of the Federal Magistrates Act, 1999 (Cth) (“FM Act”) which provides for the Court to have original jurisdiction vested in it by laws made by Parliament by express provision, or by the application of s.15C of the Acts Interpretation Act, 1901 (Cth) (“Interpretation Act”) to a provision that, either expressly or by implication, authorises a civil proceeding to be instituted in the Court in relation to a matter.[5] Section 15C of the Interpretation Act provides that a provision that an Act that expressly or by implication authorises a civil or criminal proceeding to be instituted in a particular court in relation to a matter vests that court with jurisdiction, and except so far as the contrary intention appears, the jurisdiction so vested is not limited by any limits to which any other jurisdiction of that court may be subject.
[5] FM Act, s.10(1).
The First Respondent says that the jurisdiction conferred on this Court in relation to migration decisions is that under s.476(1) of the Migration Act which provides that the Court has the same original jurisdiction in relation to migration decisions as the High Court has under para 75(v) of the Constitution, that paragraph providing that the High Court has original jurisdiction in relation to matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The First Respondent submits that the Applicant does not seek an order for a writ of mandamus or prohibition or an injunction in these proceedings, and that s.476(1) of the Migration Act does not confer jurisdiction on the Court to hear a claim in tort for personal injuries.
In relation to the ADJR Act the First Respondent says that decisions to which that Act apply are decision “of an administrative character … under an enactment.” The First Respondent says that the Applicant has not identified a decision that he is seeking review of, let alone, a decision of an administrative character under an enactment. The First Respondent therefore submits that the application is incompetent insofar as it relies on the ADJR Act.
Because there is no matter within the primary jurisdiction of the Court the First Respondent says that the Applicant’s claim for compensation does not fall within the associated jurisdiction of the Court under s.18 of the FM Act.[6]
[6] Section 18 of the FM Act confers jurisdiction on the Court, “to the extent that the Constitution permits … in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the … Court is invoked.”
The First Respondent submits that the Court lacks jurisdiction and seeks that the application be dismissed with costs.
Both the First and Second Respondents say that it is “difficult to discern with any certainty what is being sought by the Applicant or indeed the nature of his complaint”, but that it is apparent that it is a claim for compensation in relation to incidents which the Applicant alleges occurred whilst he was in immigration detention at Baxter Immigration Detention Facility.[7]
[7] First Respondent’s Submissions, para. 5: Second Respondent’s Submissions, para. 5.
The Second Respondent goes further and says that the Second Respondent is a proprietary limited company, and as such is not amenable to the jurisdiction of this Court:
a)under the Migration Act, it not being an emanation of the Commonwealth; and
b)under the ADJR Act, it is not being capable of making a decision of an administrative character under an enactment.
The Second Respondent also says the Court lacks jurisdiction to deal with the matter and seeks that the application be dismissed with costs.
The Third Respondent says that the orders sought by the Applicant are not within the jurisdiction of the Court under the Migration Act. It further says there is no basis under the Migration Act upon which the Third Respondent is named as a respondent in the application under the Migration Act, and that it is unable to identify what is alleged against it with respect to the Migration Act. The Third Respondent also says that the orders sought by the Applicant are not within the jurisdiction of the Court under the ADJR Act.
In relation to the ADJR Act claim the Third Respondent points out that the application for judicial review under the ADJR Act does not comply with r.42.03 of the Federal Magistrates Court Rules, 2001 (Cth) (“FMC Rules”) because the application does not provide a statement of the terms of the decision the subject of the application alleged to have been made by the Third Respondent, nor a statement relating to the decision given to the Applicant, and therefore the Third Respondent says it is unable to identify the decision intended to be the subject of the review. For this reason also, the Third Respondent, submits that any application made under the ADJR Act is incompetent.
The Third Respondent also submits that if the Court lacks jurisdiction then the accrued jurisdiction of the Court cannot be invoked, and even if there were jurisdiction to make orders against the First Respondent, there would still be no basis to invoke the accrued jurisdiction in relation to the orders sought against the Third Respondent because they do not arise out of the same or similar facts or issues in relation to any claim against the Third Respondent.
Applicant’s affidavit of 16 April 2007
The Applicant filed an affidavit dated 16 April 2007 (“Applicant’s
16 April 2007 Affidavit”) with his application in this matter. The Applicant’s 16 April 2007 Affidavit states that all the information given and the information referred to by the Applicant in the application is true, and annexes two annexures (Annexure A and Annexure B), and then says that the Applicant had been detained at Baxter IDF since around the beginning of 2005 until 18 January 2007 when he was released.
Annexures A and B of the Applicant’s 16 April 2007 Affidavit relate solely to an alleged physical assault against the Applicant whilst he was in Baxter IDF and alleged tampering with a computer used by the Applicant in detention. Annexure B is the CD referred to in the Application.
Applicant’s affidavit of 5 June 2007
The Applicant did not file submissions as ordered by the Court on
14 May 2007 but rather filed a further affidavit dated 5 June 2007 (“Applicant’s 5 June 2007 Affidavit”). The Applicant’s 5 June 2007 Affidavit is, as the Court observed during the hearing, really in the form of submissions.[8] It sets out various arguments concerning the issues and transcribes substantial parts of the FM Act and some parts of the ADJR Act.[9]
[8] Transcript, p. 2.
[9] Pages 6-18 of the 26 pages of the Applicant’s 5 June 2007 Affidavit consist of a “cut and paste” of various sections of the FM Act, specifically ss.42, 4(in part), 19-32, 39-41 and 10 (in part). Pages 20-22 of the Applicant’s 5 June 2007 Affidavit consist of a “cut and paste” of various sections of the ADJR Act, specifically ss.9 and 9A.
There is nothing in the Applicant’s 5 June 2007 Affidavit which indicates that the application is other than one for compensation for unlawful detention or for compensation for alleged events during the Applicant’s alleged unlawful detention.
The Applicant however raises a number of other issues. Firstly, he raises his alleged psychiatric condition, and asserts that the First Respondent’s solicitors or the Court ought to have had regard to a psychiatric report referred to in the Commonwealth Ombudsman’s letter of 20 December 2006, relating to the possible appointment of a litigation guardian (or tutor) for the Applicant. The matter is raised by way of a complaint that it was not taken into account in Fernando. The First and Third Respondents submitted that there was no purpose in appointing a litigation guardian in respect of litigation in which the Court had, in their submission, no jurisdiction.[10] The Second Respondent submitted that it may be a “useful exercise” to appoint a litigation guardian, but did so in the context of “numerous … sorts of applications” the Applicant had previously tried to bring before this Court and the Federal Court.[11]
[10] Transcript, pp. 5-6.
[11] Transcript, p. 5.
The Applicant acknowledges that it is not now possible for the application PEG 72 of 2007 to be heard in conjunction with application PEG 43 of 2007, the latter application being the application that was dismissed in Fernando.[12]
[12] Applicant’s 5 June 2007 Affidavit, p. 5.
The Applicant goes on to request that if the Court considers the application in PEG 72 of 2007 to be beyond jurisdiction that the Court transfer the proceedings to the Federal Court “without delay”.[13] The Applicant indicates that the application in PEG 72 of 2007 is to be taken “in conjunction with my application for compensation for unlawful detention and for the things I underwent as a result of that detention. A fresh application for compensation and unlawful detention and for the things that I underwent as a result of that detention has been lodged in Federal courts.”[14] The Court has taken that to mean, and indeed it appears to be common ground, that a fresh application has been filed in the Federal Court (“Fresh Application”).[15] Certainly no fresh application has been filed in this Court.
[13] Applicant’s 5 June 2007 Affidavit, p. 5.
[14] Applicant’s 5 June 2007 Affidavit, p. 5.
[15] See Transcript, pp. 2-3: Counsel for the First Respondent specifically referred to the Applicant’s “fresh application in the Federal Court in respect of his unlawful detention” at Transcript, p. 3.
Each of the Respondents submitted that there ought be no transfer of the matter if the Court was without jurisdiction. In any event, each of the Respondents submitted that the Federal Court would also be without jurisdiction, and in the circumstances there would simply be no utility in transferring the proceedings. Counsel for the Second Respondent also made the point that the application was in such a form that it was simply inappropriate to transfer it to the Federal Court. [16]
[16] Transcript, p. 4.
Application PEG 87 of 2007 and subsequent Court orders
The application in PEG 87 of 2007 was filed on 1 May 2007. The interim or procedural orders sought in PEG 87 of 2007 are the same as the interim or procedural orders sought in PEG 72 of 2007.[17]
[17] See para. 6 above.
The final orders sought are the same in form as the final orders sought in application PEG 72 of 2007, but the particulars of final order 3 sought are different. The particulars of final order 3 sought in PEG 87 of 2007 are as follows:
“(a)Against the situation where the applicant had to defend himself from the deadly physical blows directed against him by the detainee Emmanuel; when there were number of officers (GSL), and were not engage in any attempt to physical restrain the detainee, Emmanuel (Please note: the officers had to act on orders by their superiors; and it appeared the officers were not given orders to physically restrain the detainee, Emmanuel, or any other who were acting in similar manner)
(b)Against the situation, where officers (GSL) were not taking measures to stop detainee, Emmanuel, entering the applicant’s room at Baxter IDF: according to detainees, who eyewitnesses the were no officers near my room, during the time detainee, Emmanuel, entered and walked out of my room.
(c)Against the policies (or conduct) of Baxters IDF’s Management, which did not provide facilities to detainees to lock their rooms from outside. (please note: even in the prisoners of Western Australia, the prisoners could lock their rooms, both from outside and inside).
(d)Against the policies (or conduct) of Baxter IDF’s Management which did not provide adequate security to the detainee rooms: their were no emergency buttons; there were no secure doors as well as fronts (either were glass or plastic; and they could be smashed or broken quit easily: detainees have smashed or broken them with plastic chairs, brooms etc).
(e)Against the conduct of Baxter IDF’s Management that kept my property for days in my room in the compound, where the assault occurred, despite several requests to it by me to bring my belongings to the compound where I was removed to, after the assault: the excused they provided was that there wasn’t enough staff; the items were in a room that had a glass front, and could be broken into quite easily, though the door was locked.
(f)Against the conduct of Baxter IDF’s Management that identified only one of the detainees, who assaulted me: Operations had enough time to bring the situation under focus of the surveillance devices (cameras); and there were number of officers(GSL) who could have paid close attention to the incident as a duty of care.
(g)Against the conduct of Baxter IDF’s Management: (1.) that did not take security measures that would have put the offender(s) under restricted movement; (2.) they removed the victim, the applicant, from the compound instead of removing the offenders; (3.) allowed offenders to go into common areas, where the victim was hanging around, outside the compounds, even almost soon after the assault.
(h)Against possible misconduct of the police (South Australia): (1.) it appears there has been undue delays in police action. The police officer at Baxter IDF has asked from me several times, until very recently, whether I want the police to go ahead with the charges the offender, the detainee, Emmanuel. (2.) the police has not provided the victim, the applicant, about any details of the alleged charges against the detainee, Emmanuel. (3.) the police has failed to provide the victim, the applicant, with any details in the Annexure-B: the applicant (the victim) received those details from the detainee Emmanuel (the offender), Emmanuel asked me, the applicant, for the second time, to ask the police to drop the charges. (4.) the police have failed to give a written response to the victim impact statement that I had posted before I was released on the 18th January 2007 from Immigration Detention (Baxter IDF).”
(Transcribed from original without amendment).
Annexure A to the application is a Victim Impact Statement relating to alleged events that occurred whilst the Applicant was in detention. Annexure B appears to be a summary of evidence in relation to offence details for the alleged assault on the Applicant by the detainee Emmanuel.
An affidavit dated 1 May 2007 was filed in support of the application (“Applicant’s 1 May 2007 Affidavit”). The Applicant’s 1 May 2007 Affidavit states as follows:
“1.All the information given; and the information referred by me in the application relevant to this affidavit are true (Information referred: Annexure-A; and Annexure-B)
2.That I had been detained at Baxter IDF since around the beginning of 2005 until 18th January 2007; and was released from immigration detention on the 18th January 2007 on Permanent Residency reinstated.”
The application came before the Court on 21 May 2007. There was no appearance by the Applicant. There was an issue as to service on each of the four Respondents. The Court made orders that:
“1.The Application and supporting affidavit be served upon the First, Second, Third and Fourth Respondents by no later than 4.00 pm on 28 May 2007.
2.The name of the Third Respondent be amended to read “The State of South Australia”.
3.Subject to service in accordance with 1. above, any Responses objecting to jurisdiction be filed and served by 4.00 pm on 5 June 2007.
4.If responses objecting to jurisdiction are filed by the First Respondent, Second Respondent, Third Respondent or Fourth Respondent, that a written outline of submissions, including one copy of each authority relied upon, be filed and served by 4.00 pm on 8 June 2007.
5.The Applicant file and serve a written outline of submissions in reply to any response objecting to jurisdiction, including one copy of each authority relied upon, by 4.00 pm 12 June 2007.
6.The application be adjourned until 9.00 am on 15 June 2007 for the hearing of any response objecting to jurisdiction (in conjunction with application number PEG 72/2007), or further directions, as the case may be.”
Other consequential orders were made, and the Court noted on the order that there was no appearance by the Applicant or the Fourth Respondent at the directions hearing and that the Fourth Respondent had been included in orders 1 and 4 under rule 16.05(2) of the FMC Rules.
On 5 June 2007 the First Respondent filed a response objecting to jurisdiction. The terms of the response are for all relevant purposes identical to the First Respondent’s objection to jurisdiction in PEG 72 of 2007.[18]
[18] See para. 8 above.
On 5 June 2007 the Applicant filed an affidavit (“the Applicant’s Second 5 June 2007 Affidavit”). The Applicant’s Second 5 June 2007 Affidavit is identical to the Applicant’s 5 June 2007 Affidavit filed in PEG 72 of 2007, the relevant terms of which are set out above,[19] save as to service.
[19] See paras. 23-27 above.
As to service the Applicant’s Second 5 June 2007 Affidavit attaches scanned in copies of registered post customer receipts for documents sent by the Applicant to the Department of Immigration & Citizenship (“the Department”) and the Second and Third Respondents.[20] The address to which the documents were sent for the Second and Third Respondents is care of the Department in Perth, Western Australia. The Second and Third Respondents are not based in Western Australia and neither are emanations of the Department. There is no evidence of service on the Fourth Respondent, and no evidence as to whether the Fourth Respondent is part of or related in any way to any of the other respondents.
[20] Applicant’s Second 5 June 2007 Affidavit, pp.23-24.
Submissions – PEG 82 of 2007
The First Respondent filed submissions repeating its submissions in PEG 72 of 2007.[21]
[21] See paras. 10-15 above.
The Second, Third and Fourth Respondents did not file submissions objecting to jurisdiction. The Second and Third Respondents argued that they had not been served with the application, and that they only “appeared” consequent upon their appearance in PEG 72 of 2007, and out of courtesy to the Court having been advised of the joint hearing of the applications. The Fourth Respondent did not appear at all.
The Applicant’s submissions in response to the objection to jurisdiction are contained in the Applicant’s Second 5 June 2007 Affidavit, and are therefore identical to his submissions in PEG 72 of 2007.[22]
[22] See paras. 23-27 and 36 above.
Jurisdiction – Migration Act
Both applications in this matter relate to facts concerning the Applicant’s alleged unlawful detention, and certain allegedly unlawful events concerning the Applicant which allegedly occurred whilst he was in detention. Essentially the applications seek:
a)compensation for alleged unlawful detention in Baxter IDF; and
b)compensation for certain alleged events (such as alleged unlawful assaults by another detainee and by an employee of the Second Respondent) in both applications.
In Fernando this Court said as follows:
“39. Essentially, s.476(1) of the Migration Act provides for this Court to grant prerogative relief in the same manner as the High Court under s.75(v) of the Constitution in respect of reviewable migration decisions.
40. The Applicant submits that because his Application involves matters in relation to the Migration Act it is within jurisdiction: Applicant’s affidavit, 7 May 2007, paragraph 6. This however puts the position too broadly. In any event, the Court needs to look at the facts of this case. Any future decision, as foreshadowed by the Department’s 14 March 2007 letter is not yet reviewable. Prior decisions cancelling the Applicant’s visa have already been reviewed, and are the subject of Federal Court orders quashing those decisions. There is nothing for this Court to do in relation to those decisions. There are no other relevant outstanding migration decisions which this Court can review. Further, and in any event, there is no application for a writ or injunction which might be granted: s.476(1), Migration Act; s.75(v), Constitution.
41. This Court cannot hear a claim in tort for false imprisonment arising out of immigration detention in the absence of an application within the Court’s primary jurisdiction, arising in these cases by reason of s.10 of the FM Act and s.476(1) of the Migration Act. If there is no matter within the primary jurisdiction associated jurisdiction under s.18 of the FM Act cannot be invoked: Taylor v CGU Insurance Limited [2005] FMCA 1073.
42. The Applicant refers to “Goldie’s Case”. There were three relevant cases. In Goldie v Commonwealth of Australia & Ors (2000) 180 ALR 609; [2000] FCA 1873 the Federal Court dismissed an application alleging unlawful detention of a non-citizen where there was a suspicion that the relevant visa had expired. On appeal to the Full Court of the Federal Court, and by majority, it was held that the detention of the appellant was unlawful, it not being based on knowledge or a reasonable suspicion that the appellant was an unlawful non-citizen under s.189(1) of the Migration Act: Goldie v Commonwealth of Australia & Ors (2002) 188 ALR 708; [2002] FCA 433. In Goldie v Commonwealth of Australia & Ors (No.2) [2004] FCA 156 (“Goldie (No.2)”) the applicant was awarded damages of $22,000 for false imprisonment being wrongful arrest and detention under the Migration Act. In that series of cases the Federal Court presumably had jurisdiction by reason of s.39B(1A)(c) of the Judiciary Act, 1903 (Cth) which provides that the original jurisdiction of the Federal Court includes jurisdiction in any matter arising under any laws made by the Parliament. As set out above this Court’s jurisdiction is more restricted.
43. The Applicant makes it clear by reason of the Application, and para 5 of his affidavit of 7 May 2007, that this is a claim with respect to his alleged unlawful detention. It is a claim in tort for false imprisonment of a type for which damages were awarded in Goldie (No.2), and later considered by the High Court in Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48. There is nothing in Annexure F to his 7 May 2007 affidavit to the contrary. In the circumstances, the Application is in respect of a matter, and seeks relief, beyond the jurisdiction of this Court to award. Put simply, the Applicant has filed the Application in the wrong court.”
Those passages from Fernando apply with equal force in this case in relation to the applicable legal principles. Applying those principles to the facts in relation to the present applications there is no primary jurisdiction under the Migration Act for this Court to hear the applications, and unless another head of primary jurisdiction can be found, no associated jurisdiction can be invoked.
The question remains whether there is a head of primary jurisdiction under the Applicant’s ADJR Act or other claims.
Jurisdiction – ADJR Act
The Applicant does not identify any decision, nor any decision “under an enactment”, which he seeks to have reviewed.[24] The Applicant’s approach, when asked by the Court to identify a decision under an enactment, was to say to the Court that the Court ought to do that for him, or appoint pro-bono counsel for that purpose.[25]
[24] ADJR Act, ss.3(1), 5 & 6.
[25] Transcript, pp. 9-10.
The Court must consider the fact that the Applicant was a self-represented litigant. The Court’s approach to self-represented litigants, is set out in Bartucciotto v Western Health Care & Ors.[26] In Bartucciotto this Court said that it can and will have regard to principles established to allow courts to deal with self-represented litigants so as to diminish as far as possible any disadvantage they suffer as against a represented litigant, but not so that the Court can be said to be favouring the self-represented litigant or providing them with tactical or other advice concerning the consequences of certain actions.[27]
[26] (2007) 94 ALD 387; [2007] FMCA 26 (“Bartucciotto”).
[27] Bartucciotto , ALD at 394 per Lucev FM; FMCA at para. 36 per Lucev FM.
The Court can not and will not make out a party’s case for them. This is what the Applicant seeks to have the Court do in this matter, but it is not the Court’s role, and the Court declines to do so. The issue of pro bono counsel is dealt with below.[28]
[28] See paras. 55-56 below.
In the circumstances, the Court has no primary jurisdiction under the ADJR Act, and absent the identification of another primary head of jurisdiction, no associated jurisdiction.
The question remains whether the Applicant has identified some other primary head of jurisdiction, which might allow the Court to exercise associated jurisdiction in relation to the applications.
Other
The Applicant has crossed the “Other” box in relation to PEG 72 of 2007 and PEG 87 of 2007.
The Applicant has not however identified any other head of the Court’s primary jurisdiction which might be exercised in relation to the applications.
Jurisdiction – Determination
The Court therefore determines that it has no jurisdiction to hear the applications.
Other issues
The Applicant raised a number of other issues which it is necessary to detail and deal with.
Pro Bono Counsel
In Bartucciotto this Court set out the terms on which a litigant might be referred to the Registrar under r.12.03 of the FMC Rules for assistance with respect to pro bono counsel. In Bartucciotto the Court said:
“[23] The object of Part 12 “is to establish a scheme to facilitate ... provision of legal assistance to parties … otherwise unable to obtain assistance if to do so is in the interests of the administration of justice.” The scheme is not a legal aid substitute, and the Court is not required to make, or consider, a referral.
[24] The Court may refer a party to a Registrar of the Court for assistance “if to do so is in the administration of justice”. In excising the discretion to refer the Court “may take into account” a party’s:
(a) means; and
(b) capacity to obtain assistance outside the scheme,
as well as the nature and complexity of the proceeding and any other matter the Court considers appropriate.
[25] If a referral is made by the Court it is mandatory for the Registrar to attempt to arrange legal assistance from the pro-bono panel.. No party can be referred to a lawyer without the lawyer’s agreement, and if assistance is unavailable after referral, the Court may proceed to hear the matter.
[26] Rules 12.01(1) and 12.03(1) speak of the “interests of the administration of justice”. In Genovese v BGC Constructions the Court observed as follows:
The interests of the administration of justice
24. In BHP Billiton Ltd v Schultz (2004) 221 CLR 400, [2004] HCA 61, (“Schultz”) the High Court considered the nature of the “interests of justice”: Gleeson CJ, McHugh and Heydon JJ CLR at p.421, HCA at par [15] said:
The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s.5 is not disembodied, or divorced from practical reality.
25. Gummow J observed that the interests of justice “are even-handed”; CLR at p.445, HCA at par [100] while Callinan J referred to the requirement to “do equal justice”: CLR at p.492, HCA at par [258].
26. Some of the factors ordinarily considered when assessing the interests of justice are factors which it is mandatory for this Court to take into account under the Federal Magistrates Act and Federal Magistrates Court Rules: for example, costs and convenience of hearing and determination, earlier hearing of proceedings, availability of particular proceedings and pending proceedings in another court (in this case the Federal Court).
28. In assessing the “interests of the administration of justice” similar considerations to those in Schultz apply, with the qualification related to “administration of justice”. Administration means “management”: Concise Oxford Dictionary, 7th Edition (Oxford: Oxford University Press, 1984) at p.13. Thus, s.39(3)(d) of the Federal Magistrates Act is directed to a consideration of the interests of the management of justice, which must mean management by the Court of the proceedings pending before the Court.
[27] Although these observations were made in bankruptcy proceedings, the law and principles are equally applicable to these privacy and judicial review proceedings.
[28] In Taylor v Minister for Immigration & Multicultural & Indigenous Affairs in considering the not dissimilar Order 80 of the Federal Court Rules Justice French said:
10. In deciding whether to refer a matter to the Registrar under O 80 r 4, a judge undertakes an administrative function in aid of the jurisdiction of the Court: Schokker v Commissioner of Taxation [2000] FCA 1734. The decision whether to issue a referral certificate does not depend necessarily upon any assessment of the strength of the case. Indeed as O 80 r 1(4) makes clear, a referral under O 80 is not an indication that the Court has formed any opinion on the merits of a litigant’s case. Where a case is patently hopeless then that might form a basis for refusing an O 80 certificate. The ‘interests of justice’ is a wide term. It can encompass a circumstance in which, regardless of the merits of his appeal, the significance of the outcome to an appellant and perhaps to third parties such as family members is such that the appellant should be afforded every opportunity to properly present his or her case and should have legal representation for that purpose. That does not mean that if legal representation is unavailable the litigation must come to a halt. It may be that, if in the end, no pro bono practitioner is found who is willing to act then the appellant would have to represent himself.
11. …If a practitioner is able to be found to assist the appellant even at this late stage, that would no doubt be of assistance to the appellant and to the Court. But if no practitioner can be found within a reasonable time then the appellant will no doubt have to argue his appeal unrepresented.
12. … Referral under O 80 does not amount to a guarantee of representation. [29]
(Footnotes omitted from quotation.)
[29] Bartucciotto at paras. 23-28 per Lucev FM.
A referral to the Registrar for pro-bono assistance will always be discretionary. In relation to these applications the Court declined to exercise the discretion because:
a)a referral had been made in Fernando, and no lawyer on the pro bono panel was prepared to assist;[30]
b)of the similarity of the issues in Fernando it seemed unlikely that a further referral within a month of the previous referral would result in a lawyer on the pro bono panel being prepared to assist; and
c)of the possibility of a similar outcome to Fernando, where the application was dismissed for want of jurisdiction.
[30] Fernando at para. 16 per Lucev FM.
Transfer to the Federal Court
In Genovese v BGC Construction Pty Ltd [31] this Court dealt with the conditions on which the Court might transfer a matter to the Federal Court. The Court said:
[31] [2006] FMCA 1507 (“Genovese”).
“8.The making of an order to transfer proceedings from this Court to the Federal Court is discretionary: s.39(1) and (2) Federal Magistrates Act 1999 (Cth). The order is not able to be appealed: s.39(6) Federal Magistrates Act. There are, however, factors which it is mandatory for the Court to take into account under s.39(3)(a)-(d) of the Federal Magistrates Act, which provide as follows:
(a)any Rules of Court made for the purposes of subsection 40(2); and
(b)whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c)whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
9. Rule 8.02(4)(a)-(f) of the Federal Magistrates Court Rules, 2001 (Cth) provides for other factors to be considered as follows:
(a)whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;
(b)whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;
(c)whether the proceeding will be heard earlier in the Federal Magistrates Court;
(d)the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties;
(f) for family law or child support proceedings, whether the hearing of the proceeding is likely to take longer than 2 days.”[32]
[32] Genovese at paras. 8-9 per Lucev FM.
Pending proceedings in an associated matter in the Federal Court
The Applicant’s Appeal and Fresh Application are common ground. Given:
a)the similarity of issues in these applications and the issues raised in Fernando; and
b)the Fresh Application concerns the same issues (namely compensation for alleged unlawful detention or alleged unlawful events occurring whilst in detention) raised in these applications; and
c)if the Applicant’s Appeal is successful the same issues may return to this Court,
it seems entirely unnecessary to transfer these proceedings to the Federal Court, because these applications will merely add to the litigation already on foot in the Federal Court in relation to the same issues concerning the Applicant.
Section 19(1) of the FM Act provides that proceedings “must not be instituted in this Court in respect of a particular matter if proceedings in respect of an associated matter are pending in … the Federal Court”. Section 19(3) of the FM Act qualifies 19(1) by providing that if proceedings are instituted in this Court in contravention of s.19(1) “the proceedings are taken to be as valid as they would have been if … [s.19(1)] had not been enacted” if the proceedings are subsequently transferred to the Federal Court.
It is not necessary to deal with some of the interesting questions that arise from s.19(1) and (3) of the FM Act. For present purposes it is sufficient to assume (without deciding) that the Applicant’s Appeal and Fresh Application are associated matters for the purposes of s.19(1), thus meaning that under s.19(3) they are “as valid as they would [otherwise] have been” if transferred. Because the Court has determined that it has no jurisdiction to hear the applications they are invalid for the purposes of this Court. Assuming that view is correct, then the applications would be invalid for the same purposes in the Federal Court’s jurisdiction. However it does not follow that the Federal Court is without jurisdiction.[33] Because the Court has determined that for other reasons, and that in any event, it will not transfer these proceedings to the Federal Court it is neither necessary not appropriate for this Court to deal with the jurisdiction of the Federal Court in relation to the applications.
[33] See para. 69 below.
Sufficiency of resources of the Federal Magistrates Court to hear and determine the proceeding
There is no issue that this Court has sufficient resources to hear and determine this matter (if it has jurisdiction).
Question of general importance
In Genovese the Court said:
“13. A question of general importance might arise where:
(a)the issue to be determined is of general importance to the public at large or a significant class of persons or type or series of cases: MZXJR v The Minister for Immigration [2006] FMCA 652 at par [38] per McInnis FM;
(b)the case relates to the revenues of a Commonwealth or State: Noble v Cotton in Dowling, Proceedings of the Supreme Court, Vol 34 1 at p.10 per Dowling and Stephen JJ (and in that case relating to revenues of the then colony of New South Wales);
(c)significant human rights issues are at stake such as in Karner v Austria (2003) ECHR 395, where the European Court of Human Rights had to deal with differential treatment of homosexuals in succession to tenants under Austrian law as involving a question of general importance not just for Austria but for other state parties to the relevant convention;
(d)an issue as to the proper construction of legislation arises: Baumer v R (1988) 166 CLR 51;
(e)some important or exceptional point of principle arises: Veen v R (1979) 143 CLR 458 at p.461 per Stephen J, p.468 per Mason J and pp.497-498 per Aickin J;
(f) the particular area of law or the case law concerning that area is, "an area of some complexity": Spencer & Rutherford v Horizon Holidays & Ors [2006] FMCA 386 at par [7] per Connolly FM, or is a “substantial commercial dispute which involves a number of complex issues”: Spencer & Rutherford at par [10] per Connolly FM.[34]
[34] Genovese at para. 13 per Lucev FM.
The Court does not consider that there is an issue of general importance arising in the circumstances of this case as outlined in the applications. Whilst on their face the applications might seem to give rise to issues under paras (a) and (c) in the above quote from Genovese, there is no particular evidence sufficient to found a finding that the applications truly give rise to those issues, and in any event the form and nature of the applications make them an unsuitable vehicle for the determination of any relevant issues.
Costs and convenience of hearing and determination
No argument was put on this point, but there would generally be likely to be less cost incurred in a hearing in this Court than in the Federal Court.
Earlier hearing of proceedings
The matter could be listed for a hearing within a month in Perth in this Court. There is no realistic prospect of this matter being heard earlier than that by the Federal Court.
Availability of particular procedures appropriate for the class of proceedings
Given the almost concurrent jurisdiction of the Federal Court of Australia and this Court in migration matters within the jurisdiction of this Court, this point does not have any force in relation to the application for transfer if the applications are (contrary to the Court’s view) within the Court’s migration jurisdiction. If the applications are otherwise within the Federal Court’s jurisdiction however it is unnecessary to transfer them because of the Fresh Application and the Applicant’s Appeal.
Wishes of the parties
The Applicant wishes the proceedings to be transferred. That is opposed by the First, Second and Third Respondents who assert (albeit in the context of their assertion of no jurisdiction in either this Court or the Federal Court) that a transfer would have no utility.
The interests of the administration of justice
The Court considered the phrase “the interests of the administration of justice” in Bartucciotto.[35]
[35] Bartucciotto at para. 26 per Lucev FM as set out at para. 54 above.
In Genovese the following comments were added:
“29.Pursuant to the Federal Magistrates Court Rules, specifically r.1.03(1), proceedings are to be resolved as efficiently and economically as possible.
…
…
32.It is also appropriate in the interests of the administration of justice that an application such as this be heard by a Court appropriate to the nature of the application. …
33.Finally, in respect of the interests of the administration of justice … note r.8.02(2) of the Federal Magistrates Court Rules which provides that unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceedings.”[36]
[36] Genovese at paras. 29 and 32-33 per Lucev FM.
The Court does not consider that it is in the interests of the administration of justice for these applications to be transferred to the Federal Court in circumstances where the same issues are already apparently before the Federal Court in the Applicant’s Appeal and by way of the Fresh Application. The management of justice is not assisted by cluttering this Court and the Federal Court with similar applications all designed to achieve the same end (compensation) in relation to the same event or events (alleged unlawful detention, and the events allegedly occurring during it). Each of the First, Second and Third Respondents also submitted that there was a lack of utility in a transfer: why transfer the matter from this Court if it is without jurisdiction to the Federal Court which they submit is also without jurisdiction? The Court will not refuse a transfer on that basis. It may be that there is, in the Applicant’s circumstances, jurisdiction otherwise available in the Federal Court. So, for example, in Goldie v Commonwealth of Australia & Ors[37] where the Full Court of the Federal Court held that the detention of the appellant was unlawful as it was not based on knowledge or a reasonable suspicion that the appellant was an unlawful non-citizen under s.189(1) of the Migration Act. Consequently, in Goldie v Commonwealth of Australia & Ors(No.2)[38] the applicant (the appellant in Goldie) was awarded damages of $22,000 for false imprisonment and detention. However, the Court will refuse transfer on the basis that the form and nature of the applications are such that they are not suitable vehicles for the determination of the issues, and because the same issues are seemingly going to have to be dealt with by the Federal Court on the Fresh Application, or by this Court if the Applicant’s Appeal is granted. It is unnecessary, as indicated above, for the Federal Court and this Court, to have before them multiple applications all being iterations of the same issue or issues.
[37] (2002) 188 ALR 708; [2002] FCA 433 (“Goldie”).
[38] [2002] FCA 516.
Having regard to all of the above matters, the Court refuses the Applicant’s application to transfer the applications to the Federal Court. The Court notes that the refusal to transfer is not appealable.[39]
[39] FM Act, s.39(6).
Applications to be heard in conjunction with PEG 43 of 2007
The Applicant concedes that these applications cannot be heard in conjunction with PEG 43 of 2007 as that application was dismissed in Fernando.
Appointment of litigation guardian
The Court agrees with the submissions of the First and Third Respondent (in PEG 72 of 2007) and the First Respondent (in PEG 87 of 2007) that there is no purpose or utility in appointing a litigation guardian[40] for the Applicant in relation to these applications, and especially so given that the Court:
a)has determined that it has no jurisdiction to hear the applications; and
b)has refused to transfer the applications to the Federal Court.
[40] Under Division 11.2 of the FMC Rules.
Service – PEG 87 of 2007
The Applicant’s evidence[41] establishes that the Applicant did not serve the application and supporting affidavit on the Second, Third and Fourth Respondents as required by the Court’s order made on 21 May 2007.
[41] See para. 37 above.
Conclusions
The applications will be dismissed for want of jurisdiction.
The Applicant’s further applications for:
a)a litigation guardian to be appointed;
b)referral to a Registrar for pro-bono assistance;
c)these applications to be heard in conjunction with PEG 43 of 2007; and
d)transfer of these proceedings to the Federal Court,
will also be dismissed.
The application in PEG 87 of 2007 will also be dismissed under r.13.03(2)(b) of the FMC Rules as against the Second, Third and Fourth Respondents for failure to comply with the Courts order made on
21 May 2007 that the application and supporting affidavit be served upon those respondents by no later than 4.00 pm on 28 May, 2007.
Costs
The Applicant must pay the costs of each of the First, Second and Third Respondents in each of the applications. The Court will hear the parties as to quantum.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M Hewitt
Date: 16 July 2007
[23] Fernando at paras. 39-43 per Lucev FM.
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