Gamage v Minister for Immigration

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…