Jaffe, Charles Dennis v Minister for Immigration and Ethnic Affairs

[1995] FCA 924

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    No NG 475 of 1994
GENERAL DIVISION                 )

BETWEEN:

CHARLES DENNIS JAFFE
  Applicant

AND:

MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

CORAM:    SACKVILLE J.
PLACE:    SYDNEY 
DATE:     14 November 1995

REASONS FOR JUDGMENT

This is an application by the applicant, who is represented today by Mr Anstee of counsel, for the adjournment of proceedings listed for hearing today in this Court. 

The applicant commenced the proceedings on 27 July 1994, seeking review of a decision made by or on behalf of the respondent, the Minister for Immigration and Ethnic Affairs, to order the applicant's deportation.  That deportation order was made on or about 24 May 1994.  The application, which was prepared by the solicitors then acting on behalf of the applicant, stated that he was aggrieved by the decision because it denied him the right to remain lawfully in Australia and required him to leave Australia.  The grounds of the application were stated to be that the decision was an
improper exercise of the Minister's power, in that the power had been exercised for a purpose other than that for which it had been conferred.  The application sought an order that the deportation order be set aside, and consequential relief. 

Today's hearing date for the application was allocated by the Court on 31 July 1995.  That hearing date, according to the evidence, was one which the applicant said was suitable to him.  As will be seen, this is the third hearing date that has been allocated for this matter.

A directions hearing took place before Sheppard J. on 2 November 1995, at which the applicant was not present.  On that date, his Honour ordered the matter should proceed to a hearing, as scheduled on 14 November 1995.  His Honour also gave leave to the Minister to apply to have the matter struck out on the ground of the applicant's failure to prosecute, should the applicant not be ready to proceed on that date.

When the matter was called for hearing today, Mr Anstee announced his appearance on behalf of the applicant.  Mr Anstee indicated that he had been briefed only for the purpose of applying for an adjournment of the proceedings.  That application was resisted by Ms Henderson, who appears on behalf of the respondent ("the Minister"). 

The evidence adduced in relation to the application included two medical certificates tendered by Mr Anstee.  The first is a certificate from Dr Dennis L. Kuchar, a consultant cardiologist, dated 14 October 1994.  The second certificate is that of Dr W.L. Wise, a general practitioner at Paddington.  This certificate is handwritten and is dated 9 November 1995.  In addition, Mr Anstee read an affidavit sworn by the applicant on 7 November 1994.  Ms Henderson read an affidavit of Ms Warner, a solicitor from the office of the Australian Government Solicitor ("AGS"), sworn 13 November 1995.  It is on the basis of that material that I have had to deal with the application for adjournment.  There was no cross-examination of either of the deponents.

I should note that, although the applicant was represented by counsel, the applicant himself was not in court.  Mr Anstee advised me during the hearing that he had a telephone number at which his client could be reached.  I provided a short adjournment to enable Mr Anstee to contact the applicant in relation to the affidavit read on behalf of the Minister.  Mr Anstee advised me that he had been unable to reach the applicant by telephone.

The history of the matter, which I take from Ms Warner's affidavit, is as follows.  The proceedings were first listed for hearing on 24 March 1995.  On that occasion, the respondent consented to the matter being adjourned because the solicitors then acting for the applicant had filed a notice of ceasing to act.  That notice was in fact filed on 20 March 1995, only four days prior to the scheduled hearing.  The applicant indicated at the time that he intended to apply for legal aid.

The matter was then listed on a second occasion for hearing on 16 June 1995.  On 15 June 1995, the applicant telephoned a solicitor at the office of the AGS and requested an adjournment.  He said that the grounds were that he had been in hospital and that he had been refused legal aid.  He said to the solicitor that he intended to appeal against the refusal of legal aid.

Before the matter could proceed further, Einfeld J. advised that he himself was unable to hear the matter on the following day as listed because of unforeseen and unavoidable circumstances.  Accordingly, that hearing date was vacated. 

On 13 July 1995, the applicant telephoned the AGS and advised the solicitor having carriage of the matter of hearing dates that were suitable to him.  Those dates included 14 November 1995.  The solicitor subsequently lodged a request for a further hearing date with the Federal Court, providing a range of dates convenient to both parties.

On 31 July 1995, the Federal Court listed the matter for hearing on 14 November 1995.  On 10 October 1995, the AGS sent a letter to the Federal Court asking that the matter be listed for further directions, pointing out that the matter had a history of delay.  The letter stated that two previous hearing dates had been vacated by the applicant.  This was not entirely correct, since the second hearing date had been vacated by reason of Einfeld J. being unable to hear the matter.  However, it is true to say that the applicant had foreshadowed his intention to apply for an adjournment of the hearing scheduled for 16 June 1995 in any event.

On 11 October 1995, the solicitor attempted to contact the applicant on a telephone number that was recorded on the file maintained by the AGS.   She spoke to somebody who identified herself as the applicant's cousin and left a message for the applicant to contact the solicitor.

On 12 October 1995, the AGS sent a letter to the applicant at his post office box address in Sydney, which was his address for service for the purposes of the proceedings.  This advised that the Federal Court had listed the matter for further directions on 16 October 1995 at 9.30 am before Sheppard J.  The letter indicated that previous attempts had been made to contact the applicant.  It also invited the applicant, if he was unable to attend on 16 October 1995, to make telephone contact in order to provide for a more convenient date.  I infer that this letter and the other letters sent to the applicant at his post office box address were received by him.

A further attempt was made to contact the applicant by telephone on 13 October 1995, but again this was unsuccessful. On 16 October 1995 the matter was listed for directions before Sheppard J.  The solicitor from the AGS attended on this occasion, but the applicant did not attend.  On the same day, that is, 16 October 1995, the AGS sent by certified mail a further letter to Mr Jaffe at the post office box address to which I have previously referred.  This advised that the directions hearing had taken place and that a further directions hearing was listed for 2 November 1995.  It again advised the applicant that the matter had been listed for hearing on 14 November 1995.  The letter stated that the respondent expected that the hearing would proceed on that date and that any application to have the hearing date vacated would be strongly opposed.  The letter invited the applicant to contact Ms Warner of the AGS office.  No response was received to that letter. 

On 2 November 1995, as the applicant had been advised in the letter of 16 October 1995, a further directions hearing took place before Sheppard J.  Again there was no attendance by the applicant.  His Honour ordered that the matter was to proceed to hearing on 14 November 1995, and gave leave to the respondent to apply to have the matter struck out on the ground of the applicant's failure to prosecute the matter, should the applicant not be ready to proceed on that date.  For reasons that are by no means clear, the AGS did not send a letter to the applicant immediately after the directions hearing of 2 November 1995, advising him of the precise orders made by his Honour.

On 8 November 1995, Ms Warner of the AGS attempted to contact the applicant by telephone but this attempt was unsuccessful.  On 9 November 1995, a letter was sent by express post to Mr Jaffe at the post office box address.  That letter advised that the matter had been listed for hearing on 14 November 1995.  It recounted the two previous occasions upon which dates had been vacated.  The letter stated that the Minister expected that the matter would proceed without further adjournment on 14 November 1995.  It also advised that if the applicant was not ready to proceed on that date the Minister intended to file a notice of motion on that day to be dealt with immediately, to have the matter dismissed on the ground of failure to prosecute the matter. 

On 10 November 1995, a telephone conversation took place between Ms Warner and a person whom I would infer was the applicant.  In that telephone conversation the applicant asserted, and Ms Warner denied, that he had repeatedly left messages with the office of the AGS.  (I should note that Ms Warner has sworn in her affidavit that she received no message from the applicant.)  The applicant stated that he would be obtaining medical certificates from Dr Wise and Dr Kuchar.  He made certain other statements in that telephone conversation which it is unnecessary to recount.  Ms Warner asked the applicant to fax the medical certificates as soon as he could.  She stated that this was very important and that her client would object to the matter being adjourned any further.

The applicant replied that he would fax the certificates as soon as he got them.  He also stated that he thought it was unfair that he had been denied legal aid.  A further conversation took place at about 11.30 am on the same day, 10 November 1995.  In that conversation the applicant declined to provide the AGS with his residential address.  He did, however, provide a fax number.  He also stated that he would fax the doctors' certificates from the doctors' rooms. 

On 10 November 1995 a further letter was sent by the AGS to Mr Jaffe at the post office box address.  This recounted some aspects of the conversations that had taken place and confirmed the instructions that the Minister would oppose an adjournment of the hearing.  The letter also noted the applicant's assertions that he was too sick to conduct the hearing and that he was obtaining medical certificates from the two doctors.  The letter stated that he should be on notice that the Minister would require evidence to be put on in support of the application for an adjournment, if reliance was to be placed on medical certificates.  The letter advised that the doctors should be available for cross-examination and that they should be in court on Tuesday morning.

The letter noted, in addition, that the applicant had stated that he did not intend to appear in court on Tuesday but expected to be represented by counsel.  The letter warned the applicant that the proceedings were liable to be dismissed and if that occurred then no further proceedings could be brought.
It is in those circumstances that Mr Anstee makes his application for adjournment today.  It should be said  immediately that the report from Dr Kuchar, as I have indicated, was prepared over one year ago.  It is dated 14 October 1994.  It indicated that the applicant, who was at that time 54 years old, had a history of increasing angina and had been found to have a 100 per cent occlusion of a dominant right coronary artery.  However, the report also indicated that Dr Kuchar had discussed with the applicant a range of management options.  Dr Kuchar expressed the view that, despite the symptoms, he was confident that things would settle down with medical therapy.  Dr Kuchar stated that he was reluctant to undertake coronary artery surgery.   Other treatment options were explored in the report, including medication. 

There is nothing in Dr Kuchar's report to suggest that the applicant is unfit to attend the hearing scheduled for today.  Indeed, the certificate does not advance the applicant's case for an adjournment, beyond providing the information that he has an ongoing cardiac condition.  The report does not show that the applicant's cardiac condition rendered him unfit to attend court at the date it was prepared, let alone a date some thirteen months later. 

The second report was prepared by Dr Wise and dated 9 November 1995.  Dr Wise was not in court to give evidence and a copy of his report was given to Ms Henderson only this morning.  The report is brief and the handwriting is difficult to read.  It is as follows:

"Mr Jaffe suffers from ischaemic heart disease, hyperlipidaemia, and has recently been under severe emotional stress.  I believe it could [or 'would', the writing is not clear]  be detrimental to him to undertake stressful activity and/or to place himself in any stress situation for at least three months."

This report does not direct attention specifically to the applicant's capacity to appear in Court today and to participate in the hearing.  It might well be inferred that Dr Wise considered that there would be some risk of detriment to the applicant should he so appear, at least if he had to conduct his own case.  However, the nature of that detriment is not specified in the certificate.  The basis upon which the doctor has formed that view is not explained.  Nor is there any indication as to whether the position is expected to change over the next three months or indeed over any other period.

It is appropriate that Dr Wise's certificate be taken into account in relation to the applicant's application for adjournment.  However, I do not accept that the applicant's medical condition is the reason why the applicant has not appeared in the proceedings today in order to pursue his application.  Nor do I accept that the applicant has been prevented from appearing by reason of that condition.  In reaching this conclusion, the matters I have taken into account include the following:

• the limited terms of the certificate itself;

• the failure of the applicant, despite repeated warnings that an adjournment application would be opposed, to provide clear and cogent evidence of his inability to attend court and to take appropriate steps to provide that evidence in advance and to secure the attendance of the certifying doctor at court;

• the history of the matter, including the applicant's failure, without explanation, to attend the two pre-trial directions and his failure, despite repeated requests, to make contact with the AGS until the hearing was imminent;

• the failure of the applicant to communicate his desire for an adjournment by reason of an ongoing medical condition until shortly before the scheduled hearing date; and

• the failure of the applicant to swear or affirm an affidavit in support of the application for adjournment.

I have referred to the fact that two prior hearing dates in this matter were vacated.  The hearing date of 24 March 1995 was vacated at the applicant's request.  The date was vacated by consent, on the ground that the applicant's solicitors had ceased to act only a few days before the hearing.  I am prepared to accept that there were sound reasons for the date to have been vacated.

As events occurred, the second hearing date was vacated in June 1995 for reasons beyond the applicant's control.  However, the applicant had already indicated, on the day prior to the hearing, that he intended to apply for an adjournment. The reasons he gave for seeking the adjournment have not been substantiated by evidence.

Today is the third occasion on which the matter has been set down for hearing.  The principles upon which a court should deal with an adjournment application have been set out by the New South Wales Court of Criminal Appeal in State Pollution Control Commission v Australian Iron and Steel Pty Ltd (1993) 29 NSWLR 487, particularly at 494-495. They have also been dealt with recently by the High Court of Australia in Sali v SPC Limited (1993) 116 ALR 625. Each of those cases indicates that one of the matters that may be taken into account is the orderly conduct and efficient dispatch of business in the Court.

While the case has been set down for hearing for only one day, every day that is vacated involves an inroad into the availability of scarce judicial resources.  The hearing time could have been devoted to dealing with the claims of other litigants whose cases should be heard at the earliest opportunity.  The fact that this is the third occasion the matter has been set down is a matter that must be taken into account in determining whether an adjournment is appropriate. It must be remembered that the date was chosen in consultation with the applicant and, as on each previous occasion, the adjournment application has been made only shortly before the hearing.

The orderly disposition of the Court's business is, of course, not the only matter to be considered.  Mr Anstee has stressed the severe consequences that are likely to flow from the refusal of the adjournment application.  One such consequence is that the applicant is likely to face deportation.  This is plainly an important factor and I have given it close consideration.  But the history of the matter does not engender confidence that the applicant wishes to have the matter finalised at the earliest feasible opportunity.  Mr Anstee, who has said everything that can be put for the applicant, asserted from the bar table that the applicant desired to have the matter resolved.  However, in the absence of evidence to support this assertion, I do not accept that it accurately states the position.  Ms Henderson has pointed out that the applicant's affidavit reveals a number of convictions, including one for prevarication before this Court in an application under the Bankruptcy Act.  While I place no particular reliance on the applicant's convictions in relation to the adjournment application, I think they provide a reason for treating with caution an unsupported assertion that the applicant genuinely wishes to have this matter determined as soon as is feasible and practicable.
In my view, having regard to all the circumstances, the appellant has had a fair opportunity to present his case, had he chosen to avail himself of that opportunity.  It is an unfortunate circumstance that the applicant has been unrepresented since March 1995, except for Mr Anstee's appearance today on the adjournment application.  But there is nothing to suggest that the denial of legal aid will be reversed or that the situation with respect to legal representation will change if an adjournment is granted.  I do not think it appropriate that the hearing date in this matter should be vacated for a third time.

In my view, the application for adjournment should be refused.  The case should proceed.

I certify that this and the preceding 13 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate:

Dated:14 November, 1995

Heard:14 November, 1995

Place:            Sydney

Decision:14 November, 1995

Appearances:      Mr M. Anstee, appeared for the applicant.

Ms R. Henderson, instructed by the Australian Government Solicitor, appeared for the respondent.