Gamage v Minister for Immigration

[2009] FMCA 1145

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAMAGE v MINISTER FOR IMMIGRATION & ORS [2009] FMCA 1145

MIGRATION – Application for judicial review – student visa application – interim injunction to prevent deportation.

LEGAL PRACTITIONERS – Representation – struck off legal practitioner seeking to appear either as a McKenzie friend or a friend of the Court – struck off for misappropriation of funds in migration deportation matter.

Legal Practitioners Act 2003 (WA), s.203(1)(b)

Cristovao v Butcher Paull & Calder & Ors [2006] WADC 75
Cristovao v Butcher Paull & Calder [2006] WASCA 184
Ejueyitsi v Maloney [2006] WASC 146
Gamage v The State of Western Australia [2008] WASCA 49
McKenzie v McKenzie [1971] P 33
Schagen (1993) 8 WAR 410
Smith v The Queen (1985) 159 CLR 532
The Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198

Applicant: INDRAJABANDU GAMAGE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

Third Respondent: EDITH COWAN UNIVERSITY

File Number: PEG 204 of 2009

Judgment of: Lucev FM

Hearing date: 16 November 2009

Date of Last Submission: 16 November 2009

Delivered at: Perth

Delivered on: 16 November 2009

REPRESENTATION

Applicant: In Person

Counsel for the First and Second Respondents: Mr P Macliver

Solicitors for the First and Second Respondents: Australian Government Solicitor

ORDERS

1. The application by Mr De Alwis to appear either as a McKenzie friend or a friend of the Court is refused.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 204 of 2009

INDRAJABANDU GAMAGE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EDITH COWAN UNIVERSITY

Third Respondent

REASONS FOR JUDGMENT

(Ex tempore amended and edited from the transcript)

Mr De Alwis seeks to appear

1. This is an application in which Mr De Alwis seeks to appear today on behalf of the applicant, Mr Gamage, as a McKenzie friend[1] or as a friend of the Court.

   [1] McKenzie v McKenzie [1971] P 33.

Mr De Alwis was struck off

1. The commencing point is the judgment of the Full Court of the Supreme Court of Western Australia in The Legal Practitioners Complaints Committee v De Alwis.[2] In those proceedings, Mr De Alwis was struck off the roll in relation to an allegation that he had misappropriated funds from a client who was being deported.[3]

   [2] [2006] WASCA 198 (“De Alwis”).

   [3] De Alwis at paras.5-9 and 105-109 per Steytler P, Pullin JA and Murray J.

2. A review of De Alwis shows that the proceedings before the Legal Practitioners Disciplinary Tribunal[4] were protracted. They were adjourned a number of times over a fairly lengthy period of time in circumstances where Mr De Alwis sought adjournments for a variety of reasons, but at the end of the day, did not attend the final disciplinary hearing.[5]

   [4] “Disciplinary Tribunal”.

   [5] De Alwis at paras.3-25 per Steytler P, Pullin JA and Murray J.

3. The matter came on before the Supreme Court and there were evidently, from the record of the judgment, a myriad of submissions made and when the matter came on before the Supreme Court, Mr De Alwis collapsed. At the next hearing Mr De Alwis claimed ill health and again collapsed. At the next hearing, an adjournment was sought, but the Supreme Court indicated the matter could proceed by way of written submissions if Mr De Alwis was unwell. The written submissions were not filed, and Mr De Alwis then sought to have Pullin and Roberts-Smith JJA voluntarily disqualify themselves. A further hearing was then held, at which Mr De Alwis collapsed. A further hearing was then scheduled. Mr De Alwis did not attend, but communication was made to the Supreme Court that he was in Fremantle Hospital. The hearing eventually proceeded on the basis that Mr De Alwis would make written submissions. According to the judgment, they were not filed.[6]

   [6] De Alwis at paras.28-68 per Steytler P, Pullin JA and Murray J.

4. The Supreme Court came to the view as a matter of merit that Mr De Alwis’ breach was so serious as to demonstrate unfitness for further practice,[7] and indicated that that unfitness was further demonstrated by his conduct in the proceedings.[8]

   [7] De Alwis at para.109 per Steytler P, Pullin JA and Murray J.

   [8] De Alwis at para.111 per Steytler P, Pullin JA and Murray J: “affidavits … replete with argumentative material …including allegations of gross misconduct against judicial officers, practitioners and court staff, none of which appear to have any foundation.”

Who may represent?

1. Section 203(1)(b) of the Legal Practitioners Act 2003 (WA)[9] provides that a legal practitioner who has been struck off the roll is prohibited from representing a person in a statutory tribunal or court. The question of whether a person can take part in proceedings as a McKenzie friend or a friend of a court is a matter within the discretion of the presiding judicial officer of the court in which that appearance is sought.[10]

   [9] “Legal Practitioners Act”.

   [10] Schagen (1993) 8 WAR 410; Smith v The Queen (1985) 159 CLR 532.

Mr De Alwis’ attempts to appear in other courts whilst suspended

1. The Court is aware, and has put to Mr De Alwis, and he has rejected the proposition, that there have been a number of occasions on which he has been refused a right to appear in other courts in Western Australia and that on at least one occasion, he was refused a right of appearance on the basis that affidavits that he had prepared contained scandalous and irrelevant material.[11]

   [11] See, for example, refusing a right to appear whilst suspended: Cristovao v Butcher Paull & Calder & Ors [2006] WADC 75 at para.28 per Crisford DCJ: “his [Mr De Alwis’] presence may be obstructive”; Cristovao v Butcher Paull & Calder [2006] WASCA 184 at para.4 per Pullin JA: “Mr De Alwis has sworn an affidavit in the District Court proceedings which contains material which … is irrelevant and scandalous in nature.”; Ejueyitsi v Maloney [2006] WASC 146 at para.35-36 per Hasluck J refusing leave to appear to Mr De Alwis and noting an earlier, unreported, judgment of the Western Australian Supreme Court, Court of Appeal on 9 September 2005 refusing leave in the same matter.

Should Mr De Alwis be allowed to appear today?

1. An affidavit has been filed by Mr Gamage in respect of the primary matter, which deals with some of the issues related to the appearance which is now sought to be made by Mr De Alwis. The applicant says:

   I am not a lawyer or a migration agent.

2. The Court would simply add that at this point in time neither is Mr De Alwis. The case is said to involve many issues of law or procedure, and that the applicant’s English is not sufficient. It is also said that before the Migration Review Tribunal,[12] the applicant was unable to follow the accent of the member. As the Court indicated in an exchange with Mr De Alwis, the fact that self‑represented litigants appear self‑represented in this Court and often without the benefit of any English at all, let alone English which is not sufficient, is not unusual. In his affidavit, Mr Gamage says that he has been unfairly locked up for 28 months in Hakea Prison, that he is under severe stress and unable to conduct his own case. There is no evidence of the stress adverted to by way of medical evidence or otherwise. The assertion that he has been unfairly locked up cannot be sustained in light of the judgment of the Supreme Court of Western Australia, Court of Appeal in Gamage v The State of Western Australia,[13] which the Court has also read.

   [12] “Tribunal”.

   [13] [2008] WASCA 49 (“Gamage”). A copy of Gamage was annexed to the Affidavit of Arran Niall Gerrard, sworn 13 November 2009 (Mr Gerrard’s Affidavit) as Annexure ANG 1.

3. The applicant goes on to assert that Mr De Alwis was a migration agent and a successful immigration lawyer before he was struck off, and that his circumstances appear very wrong and very unfair. All that the Court can say in relation to that is, as it indicated in exchanges with Mr De Alwis in his submissions, the question of whether or not a practitioner ought to be struck off and the legal judgments in relation to that are matters for the Full Court of the Supreme Court of Western Australia. In De Alwis  the Full Court of the Supreme Court of Western Australia have made plain their views as to whether or not Mr De Alwis ought to be struck off. It appears to the Court that there is nothing of substance in what has been put today which would in any way indicate that the decision of the Full Court of the Supreme Court of Western Australia was wrong. Mr De Alwis has also filed an affidavit. In that affidavit he indicates that he is intending now, some three years after the event, to take to the High Court an appeal against his striking off and the refusal of the Full Court of the Supreme Court of Western Australia to grant him an extension of time within which to appeal the decision of the Disciplinary Tribunal to refer his matter to the Full Court of the Supreme Court.[14]

   [14] Mr De Alwis’ Affidavit, para.60 (handed up during the hearing).

4. The Court has had regard to the content of Mr De Alwis’ affidavit filed this morning. It largely contains matters which, in the Court’s view, are irrelevant to his application to appear today in these proceedings. Some flavour of it can be obtained if one looks at paragraphs 10 and onwards, where he say that he has been the subject of a culmination of 16 years of persecution of a team led by the Law Complaints Officer in this state, as the Law Complaints Officer then was, and the person who has succeeded him is implicated in the affidavit as well. Mr De Alwis asserts that a Deputy District Registrar of the Federal Court was motivated by racism and that she is of a certain ethnic origin which motivates her against Mr De Alwis because of his ethnic background. He asserts that he believes that Mr Gamage is totally innocent of the three counts of the indictment of which he was convicted by a Judge and jury in the District Court in Perth, Western Australia, those counts being two counts of indecently dealing with a child between the ages of 13 and 16, and one count of sexual penetration of a child without consent, that child being aged between 13 and 16, that conviction being on 3 April 2007.[15]

   [15] Gamage at para.1 per Steytler P.

5. It suffices to say that it is apparent on a review of Mr De Alwis’ affidavit that it simply seeks to re‑agitate matters which have already been determined in Mr De Alwis’ case concerning his striking‑off, and determined by the Supreme Court of Western Australia, Court of Appeal in Gamage in relation to the conviction of Mr Gamage for the offences that the Court has just set out. It also contains other irrelevant and scandalous matters concerning the Law Complaints Officer and a Deputy District Registrar of the Federal Court, who is also a Registrar of this Court.

Consideration

1. The Court considers that it is inappropriate to have Mr De Alwis appear as a McKenzie friend or a friend of the Court in a matter of this type (that is, a migration deportation matter) which is similar to that in which Mr De Alwis was involved and for which he was struck off for misappropriation of funds. In any event, the Court takes the view that in the circumstances of this case, to allow him to appear would be contrary to the express terms and the intent and purpose of s.203(1)(b) of the Legal Practitioners Act, which the Court does not consider was intended to allow a person such as this (that is, a legal practitioner who has been struck off) to appear as a McKenzie friend or otherwise. Further, having regard for the fact that the right of appearance is a matter within the discretion of the Court, the Court has had regard to the terms of the application as originally filed, which it is apparent that Mr Gamage has been assisted with. Those terms are, in relation to the interlocutory application, largely incompetent. In fact, of nine orders sought, there are only three that this Court might grant, including the present application and an order preventing the deportation and an order for an expedited hearing. Otherwise, the matters sought in the interlocutory relief are not matters which this Court could order. And further, in relation to the final relief sought, the terms of the application are vague and un-particularised.

2. The Court also has regard for the proceedings before the Tribunal and for the comments of the Tribunal. In relation to an extension of time that was sought below, the Tribunal received a submission in relation to the hearing. The Tribunal observed that the submission included a verbose and detailed affidavit by Mr De Alwis, describing and complaining about the circumstances of his being struck off. However, that submission did not purport to be a response to the Tribunal’s s.359A and s.359(2) letter of invitation sent by the Tribunal to Mr Gamage.[16]

   [16] Tribunal Decision dated 19 October 2009 para.21 (“Tribunal Decision”).

3. The Tribunal observed that, almost a month later, it finally received a batch of documents from Mr De Alwis accompanied by another request for an extension of time. None of the documents were relevant to either of the matters raised in the Tribunal’s invitations of 25 August or 9 September 2009.[17]

   [17] Tribunal Decision, para.54.

4. The Court has also had regard in arriving at this view, to the various judgments of the Supreme Court of Western Australia referred to earlier, of De Alwis, Cristovao and Ejueyitsi.

5. All of the things considered lead the Court to the view that it is unlikely to helped, and more likely to be hindered, by an appearance by Mr De Alwis.

6. In relation to the question of prejudice to Mr Gamage, the Court has considered that issue and is of the view that Mr Gamage should have some time to read Mr Gerrard’s Affidavit filed this morning. That affidavit is not a long affidavit, and is primarily concerned with matters of procedure and matters of which Mr Gamage would already be aware. Further, as the Court has already indicated in exchanges with Mr De Alwis, the Court regularly, and more often than not, has persons appear before it who are unrepresented and either do not speak English or do not speak English well, and they are assisted with their submissions to the Court by an interpreter.

7. For all those reasons, the Court refuses the application by Mr De Alwis to appear, either as a McKenzie friend or a friend of the Court.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:  S. Gough

Date:  20 November 2009