Jaffe, Charles Dennis v Minister for Immigration & Ethnic Affairs
[1996] FCA 605
•14 MAY 1996
CATCHWORDS
PROCEDURE - application for adjournment of hearing dismissed - application for order of review under Administrative Decisions (Judicial Review) Act 1977 dismissed - whether trial judge's discretion miscarried.
Federal Court Rules Order 32 rule 2
House v The King (1936) 55 CLR 499
CHARLES DENNIS JAFFE v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS NG 920 of 1995
Black CJ, Carr and Moore JJ
14 May 1996
Sydney
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 920 of 1995
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:CHARLES DENNIS JAFFE
Appellant
AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
COURT: BLACK CJ, CARR and MOORE JJ.
DATE:14 MAY 1996
PLACE:SYDNEY
MINUTES OF ORDER
THE COURT ORDERS THAT:
Leave to appeal from the judgment on 14 November 1995 dismissing the appellant's application for an adjournment of the hearing of matter NG 475 of 1994 is granted.
Each of the appeals from the judgments on 14 November 1995 refusing to adjourn the hearing of matter NG 475 of 1994 and dismissing the application for an order of review in matter NG 475 of 1994 is dismissed.
The appellant pay the respondent's costs of the appeals.
N.B.Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 920 of 1995
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:CHARLES DENNIS JAFFE
Appellant
AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
COURT: BLACK CJ, CARR and MOORE JJ.
DATE:14 MAY 1996
PLACE:SYDNEY
REASONS FOR JUDGMENT
BLACK CJ: In this matter the appellant, Mr Charles Dennis Jaffe, has sought leave to appeal from an order made on 14 November 1995 by a judge of this Court refusing his application for an adjournment of a hearing of his application under the Administrative Decisions (Judicial Review) Act 1977 listed for that date.
He has also appealed against his Honour's judgment given immediately afterwards on the same date dismissing the application for the order of review in reliance upon Order 32 rule 2 of the Federal Court Rules.
As the question whether an adjournment should have been refused is so closely connected to the ultimate dismissal of the application under Order 32 rule 2 and noting also that the application for leave to appeal against the refusal to grant an adjournment was not
opposed, we granted leave to appeal against the order refusing the adjournment application. Accordingly the matter before us proceeded as a hearing of both appeals at the one time.
The appellant was born in New Zealand in 1939 and he first arrived in Australia on 26 July 1968. The material before the learned primary judge showed that on 6 April 1984 the appellant left Australia and between that time and 1989 he entered and departed from Australia several times. On each occasion it would appear that he travelled to New Zealand for relatively short periods.
On 26 March 1990 the appellant again entered Australia. By reason of the appellant's conviction and sentence of imprisonment for a period in excess of one year in respect of offences committed by him whilst previously in Australia, the appellant's status following that entry to Australia in March 1990 was that of an illegal entrant.
On 12 December 1991, whilst serving a sentence of imprisonment at Parramatta Gaol, the appellant was served by the respondent's Department with a notice of his illegal entrant status. The notice was one given under s20 of the Migration Act 1958. The appellant was also given notice of the Department's intention to refer to the respondent the question of the exercise of his power to deport the appellant.
On 24 May 1994 the respondent's delegate signed an order that the appellant be deported from Australia. Shortly afterwards, on 27 July 1994, the appellant filed in this Court an application for an order of review of the respondent's decision to make that deportation order. The ground of the application was that the decision to deport was an improper exercise of the Minister's power in that it had been exercised for a purpose other than that for which the power had been conferred.
The history of the application from its commencement in July 1994 until the matter came on for hearing before the learned primary judge in 1995 is set out in detail in the reasons for judgment given by the primary judge. It is not necessary for me to repeat what his
Honour said, the history - as I have indicated - being very clearly set out in his Honour's reasons. Reference should, however, be made to letters that his Honour found were sent by the solicitor for the respondent to Mr Jaffe at his address for service, which was a post office box in Sydney.
On 16 October 1995 the solicitor handling the case for the Australian Government Solicitor sent a letter to Mr Jaffe which concluded with a paragraph in these terms:
"As you know, the above matter has been listed for hearing on 14 November 1995. The respondent expects that the hearing will proceed on that day and will strongly oppose any application to have the hearing date vacated."
There was then an invitation to the appellant to contact Ms Warner of the Australian Government Solicitor's Office, she being the senior solicitor having the conduct of the case. A further letter was sent on 9 November, which included a paragraph as follows:
"My client expects that the matter will proceed without further adjournment on 14 November 1995. If you are not ready to proceed on 14 November 1995, I intend to file a notice of motion on that day, to be dealt with immediately, to have the matter dismissed on the ground of your failure to prosecute the matter."
The letter makes reference to two earlier adjournments, the circumstances of which were quite different from the circumstances of the adjournment the subject of the appeal.
Then on 10 November, that is to say only a few days before the matter was listed for hearing, a further letter was sent to Mr Jaffe. Amongst other things it confirmed the solicitor's instructions that the Minister would oppose any adjournment of the hearing and it said that:
"If an adjournment is granted, [the Minister] will seek an order for any costs thrown away by the respondent as a result of the adjournment order."
It referred to various assertions made in telephone conversations about the appellant's state of health and put the appellant on notice that he would be required to "put on" (I use
the expression in the letter):
"evidence in support of the application for an adjournment",
and that, if he was relying on medical certificates, the relevant doctors should be available for cross-examination.
The letter also contained this paragraph:
"I further note that you do not intend to appear at Court on Tuesday but that you expect to be represented by Counsel. You are not prepared to tell me the name of such Counsel. I reiterate my comments to you in my letter to you of 9 November 1995, sent by certified mail to your post office address, that if you do not attend in person or by a legal representative on the date of hearing, the matter is liable to be dismissed. If dismissed, you may not be able to re-commence the proceedings and you may then be liable for subsequent removal from Australia. It is therefore strongly in your interests, I would suggest, for you to be represented at the hearing on 14 November 1995."
Before passing to the principal arguments, I should say that Ms McCallum, who appeared for the appellant, in the course of her very able and comprehensive submissions, argued that to a lay person the paragraph that I have just reproduced - particularly viewed in the context of the whole correspondence and in the context of an earlier paragraph about seeking an order for costs thrown away if the adjournment were to be granted - would suggest that the appellant would be sufficiently protected against severe consequences if he were represented by counsel on 14 November. And further that, even if the matter were not to proceed, nothing very severe, perhaps other than the payment of costs, would happen to the appellant provided somebody was there; and "somebody" would sufficiently include counsel.
Notwithstanding the force that the argument might have in other circumstances, I do not think that it is sufficient of itself to cast any doubt upon the way in which the learned primary judge dealt with the matter, when it is recalled that in fact the appellant had counsel to represent him in the application for an adjournment and that the barrister, a member of the New South Wales Bar, must have been properly instructed and must be assumed to have been in a position to clarify any doubts that the appellant as a lay person might have had, if indeed he had any and if indeed he had sought clarification of them.
I should also say that it is difficult to see how somebody represented by counsel for an adjournment only could be confused about the outcome if the adjournment application was not in fact granted. Ordinarily one would expect the consequence if the application to have the case "put off" - to use lay persons' terms - was not granted, would be that the case would go on and be dealt with.
The learned judge dealt with the application for an adjournment in considerable detail and he dealt particularly with the application based upon the appellant's medical condition. That ground was based substantially on a medical certificate dated 9 November prepared by Dr Wise who, however, was not in court to give evidence and whose medical certificate was very brief. The certificate read:
"To whom it may concern
re Charles Dennis Jaffe
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."
The primary judge said that it was appropriate for Dr Wise's certificate to be taken into account in relation to the application for an adjournment, but he concluded that he did not accept that the applicant's medical condition was the reason why the applicant had not appeared in the proceedings to date in order to pursue his application. Likewise, he did not accept that the applicant had been prevented from appearing by reason of his condition. In reaching that conclusion, he took into account a number of specific matters, which he set out.
His Honour also referred to previous hearings that had been adjourned, although in circumstances that were understandable, but noted that it was the fact that this was the
third occasion on which the matter had been set down for hearing. His Honour then referred to the principle stated recently by appellate courts, including the High Court of Australia, that one of the matters that may be taken into account in deciding whether or not to grant an adjournment was the orderly conduct and efficient dispatch of the business of the Court. His Honour, however, made it very clear that the orderly disposition of the Court's business was not the only matter to be considered and he drew specific attention to the argument concerning the severe consequences that were likely to flow from the refusal of the adjournment application, one of which was, his Honour found, that the applicant was likely to face deportation. He said that this was an important factor and it was one that he had given "close consideration".
As I have said, the judge gave careful consideration to all the matters advanced in favour of the adjournment application. It was clearly open to him to reject the medical grounds for the adjournment and to make the findings of fact that he did, and indeed counsel for the appellant did not suggest otherwise. The judge carefully considered the serious consequences that would follow as a matter of probability if the adjournment were refused with the result that the application proceeded to hearing without the appellant being present.
Given the comprehensive way in which the learned judge dealt with the matter, counsel for the appellant confined her primary submission to the argument that, although she was not able to point to specific areas of principle or to the judge having taken into account irrelevant matters or otherwise made errors in his treatment of the matter, nevertheless the consequence was such that the conclusion ought to be drawn by this Court that there had been error such as to justify the interference of the appellate court. In so submitting, she was of course asking us to apply the principles set out in the well known passage in the judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499, at 504-505. Her submission, essentially, was that the consequences of the refusal to grant an adjournment were unfairly punitive of the appellant and manifestly unjust. She argued that the consequence that an unrepresented litigant was left liable to immediate deportation put the case into the most extreme class.
I have carefully considered this submission but, given the way in which the learned primary judge considered the matter and the facts that he found (which were clearly open to him to find) and all the other circumstances, I am not prepared to conclude that the exercise of the judge's discretion was attended by any error. I do not consider that his decision was outside the proper limits for the exercise of his discretion.
I would therefore dismiss the appeal against the order refusing the adjournment.
As far as the appeal against the decision of the trial judge to exercise power under Order 32 rule 2 is concerned, that also of course was a matter for the exercise of a discretion. Having reached the point at which he had failed to secure an adjournment, the appellant must be taken to have known that the matter might be dealt with summarily. He had certainly been given notice that that might happen. For essentially the same reasons that I would not conclude that there was any error in the exercise of the judge's discretion concerning the adjournment application, I would not conclude that there was any error in the judge's exercise of discretion to dismiss the matter under the provisions of Order 32 of the Rules.
In the result therefore I would dismiss both appeals and I would propose that the costs of the respondent be paid by the appellant.
I certify that this and the preceding 6 pages are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.
Associate:
Date:
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 920 of 1995
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:CHARLES DENNIS JAFFE
Appellant
AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
COURT: BLACK CJ, CARR and MOORE JJ.
DATE:14 MAY 1996
PLACE:SYDNEY
REASONS FOR JUDGMENT
CARR J: I agree respectfully with the conclusions reached by the Chief Justice that these appeals should be dismissed and with the reasons given by the Chief Justice why that course should be taken. I agree also with the orders proposed as to costs.
I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Justice Carr.
Associate:
Date:
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 920 of 1995
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:CHARLES DENNIS JAFFE
Appellant
AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
COURT: BLACK CJ, CARR and MOORE JJ.
DATE:14 MAY 1996
PLACE:SYDNEY
REASONS FOR JUDGMENT
MOORE J: I respectfully agree for the reasons given by the Chief Justice that both appeals should be dismissed and that the appellant be ordered to pay the respondent's costs of both appeals.
I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.
Associate:
Date:
counsel for the appellant: L McCallum
solicitors for the appellant: Barlow & Co
counsel for the respondent: N J Williams
solicitors for the respondent: Australian Government Solicitor
date of hearing: 14 May 1996
place of hearing: Sydney
date of judgment: 14 May 1996
2
1
0