Kim& ORS v Minister for Immigration

[2006] FMCA 555

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KIM& ORS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 555

MIGRATION – Application for summary dismissal – no reasonable cause of action – where Tribunal found delegate’s findings appeared to be incorrect – whether Tribunal should have remitted application to Department – whether Tribunal able to “cure” any defect in delegate’s decision.

Migration Act 1958 (Cth), s.349(3)
Migration Regulations 1994
Federal Magistrates Court Rules 2001, r.13.10
Federal Court Rules
Administrative Appeals Tribunal Act 1975 (Cth), ss.25, 43 & 349

Pridmore v Magenta Nominees Pty Ltd [1999] FCA 152
General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 236
Webster v Lampart (1983) 177 CLR 598
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218
Minister for Immigration & Multicultural & Indigenous Affairsv Ahmed [2005] FCAFC 58
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 561
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143
Twist v Randwick Municipal Council (1976) 136 CLR 106
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119
Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294
SZGKO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1254
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Burton v Bairnsdale Shire (1908) 7 CLR 76

Applicant: WAN SEONG KIM & ORS

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: SYG375 of 2005

Judgment of: Barnes FM

Hearing date: 20 March 2006

Date for the last submission: 10 April 2006

Delivered at: Sydney

Delivered on: 28 April 2006

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the amended application filed on 18 February 2005 be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 on the basis:

   (a)that no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; and, in the alternative

   (b)the proceeding or claim for relief is frivolous.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG375 of 2005

WAN SEONG KIM & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This matter comes before the Court by way of an application filed by the first respondent, the Minister for Immigration & Multicultural & Indigenous Affairs, seeking that the applicants’ amended application filed on 18 February 2005 seeking review of a decision of the Migration Review Tribunal made on 5 January 2005 be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001. 

2. The background to this application is that the applicants, who are husband, wife and child, entered Australia for the first time in January 1996 as the holders of tourist visas valid until 12 April 1996.  For convenience all further references to the applicant are references to the first applicant as the second and third applicants make no substantive claims but rely on their membership of the family unit of the first applicant. 

3. Relevantly, after holding a subsequent tourist long stay visa valid to

   
   

   12 January 1997, the applicant held three successive Subclass 010 (Bridging A) visas.  On 4 May 1998 he was granted a (Class UC) Subclass 457 (Business (Long Stay)) visa valid until 4 May 1999.  It is not disputed that this was the last substantive visa held by the applicant. 

4. On 23 May 1999 the applicant was granted a further Subclass 010 (Bridging A) visa until 27 March 2003 on the basis of an application for a General (Residence) (Class AS) visa.  On 4 April 2001 his application for a General Residence (Class AS) visa was refused.  That decision was affirmed by the Migration Review Tribunal (the Tribunal) on 21 May 2003.  In the meantime, on 27 March 2003 the applicant had been granted a Subclass 020 (Bridging B) visa valid until 27 June 2003 and on 28 March 2003 he had departed Australia and re-entered on 1 April 2003.  On 16 June 2003 he was granted a Subclass 030 (Bridging C) visa. 

5. On 21 May 2003 the applicant lodged an application for an Employer Nomination (Residence) (Class BW) visa.  The secondary applicants were included in the application.  On 16 June 2003 a delegate of the respondent refused to grant the visa and the applicants sought review by the Tribunal.  The Tribunal affirmed the decision under review, finding that the applicants were not entitled to the grant of Class BW visas.  It is this decision which is the subject of the application to this Court of 11 February 2005 and the amended application of 18 February 2005. 

6. It is relevant for the purposes of this application to refer briefly to the decision of the delegate of the first respondent. The delegate referred to the criteria applicable to the visa subclass sought by the applicant as contained in paragraph 856 of Schedule 2 to the Migration Regulations, in particular paragraph 856.211(2)(a) which provides that if the applicant is not the holder of substantive visa the applicant must satisfy Schedule 3 criteria 3001, 3003 and 3004.

7. Criteria 3001 of Schedule 3 to the Migration Regulations 1994 relevantly provides that:

   (1)     The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

   (2)     For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

   … (c)  if the applicant:

   (i)  ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

   (ii)  entered Australia unlawfully on or after 1 September 1994;

   whichever is the later of:

   (iii)  the last day when the applicant held a substantive or criminal justice visa; or

   (iv)  the day when the applicant last entered Australia unlawfully.

8. The delegate found that the applicant was currently the holder of a bridging visa B and that his previous substantive visa had been a “UC 457” visa that expired on 4 May 1999 and continued:

   “Therefore the length of time exceeds 12 months so the applicant does not meet Schedule 3 criteria 3001 and 3002 [sic].  In respect to criteria 3004 the applicant did not enter Australia until 12/01/1996 so this criteria does not apply.”

9. In a letter accompanying the application for review filed with the Migration Review Tribunal, the migration agent for the applicant pointed out that criteria 3001 and 3002 effectively set 28 day and 12 months time limits respectively within which an application must have been made for a person who did not hold a substantive visa.  The letter then made a submission that the applicant did not hold a substantive visa at the time of his application because of factors beyond his control. 

10. The Tribunal wrote to the applicant on 20 October 2004 under s.359A of the Act seeking his comment on information that he may not satisfy clause 3001 of Schedule 3 to the Migration Regulations which required him to make a valid application within 28 days after the last day on which he held a substantive visa (being 4 May 1999) as he had not lodged his application until 21 May 2003. The letter continued that clause 3003 did not apply to Mr Kim’s circumstances and that since he did not meet the criteria in clause 3001 it was not necessary to assess whether he met the criteria in clause 3004 as he was required to satisfy both clauses to satisfy paragraph 856.211(2)(a).

11. The Tribunal reasons for decision record that the applicant failed to provide comments within the prescribed timeframe and therefore under s.359C of the Act it made a decision on the review without taking any further action to obtain the applicant’s comment or to enable him to appear before it.

Tribunal decision

1. In its findings and reasons the Tribunal referred to the criterion in paragraph 856.211(2)(a) of Schedule 2 to the Migration Regulations.  It found that the visa applicant ceased to hold his last substantive visa on 4 May 1999 and lodged his application for the Class BW visa on

   
   

   21 May 2003, more than four years after he ceased to hold his last substantive visa. 

2. The Tribunal member expressed the view that the delegate’s findings appeared to be incorrect for a number of reasons including the incorrect reference to the criterion in clause 3002 and that:

   The visa applicant was required to make his application 28 days after the relevant day (subclause 3001(1)) and not 12 months after the relevant day (clause 3002) as stated by the delegate.

3. The Tribunal went on to state that under clause 3001 of Schedule 3 to the Migration Regulations the applicant was required to make a valid application 28 days after the relevant day (being 4 May 2004 the last day he held a substantive visa). He lodged his primary application on 21 May 2003, which was more than 28 days after 4 May 1999. Hence the Tribunal found that the visa applicant did not meet the criterion in clause 3001.

4. It found clause 3003 inapplicable to the applicant’s circumstances and that it was not necessary to assess whether he met the criteria in clause 3004, as he was required to satisfy both clauses 3001 and 3004 in Schedule 3 to the Migration Regulations to satisfy the criteria in paragraph 856.211(2)(a). Therefore the Tribunal found that the visa applicant did not meet the criteria in paragraph 856.211(2)(a).

5. The Tribunal also found that the secondary applicants (the primary applicant’s wife and child) could not meet the criteria in clause 856.321(2) as it required that they be members of the family unit of an applicant who had satisfied the primary criteria.  There was no evidence to suggest that the visa applicant had met the criteria for the other subclasses of the class of visa in issue.  The Tribunal stated that it had no alternative but to affirm the decision under review, finding that the visa applicants were not entitled to the grant of Employer Nomination (Residence) (Class BW) visas. 

Application for judicial review

1. In the proceedings before this Court initiated on 11 February 2005 the applicant sought review of the decision of the Migration Review Tribunal.  He now relies on an almost identically worded amended application filed on 18 February 2005 which joined the second and third applicants.  That application seeks an order setting aside the decision of the Migration Review Tribunal made on 5 January 2005 and also an order remitting the matter to the Department of Immigration & Multicultural & Indigenous Affairs [sic] for further consideration.  The applicant was legally represented at the time his application and amended application were filed. 

2. The amended application recites some of the chronology set out above. It appears to be contended in the amended application that the delegate (who based her decision on the ground that the applicant failed to meet paragraph 856.211(2)(a) of the Migration Regulations which requires the visa applicant to satisfy criterion 3001 of Schedule 3 of the Migration Regulations) erred in concluding that criterion 3001 required a visa applicant to lodge his or her visa application within 12 months of the last day the visa applicant held a valid substantive visa and that hence the Tribunal decision should be set aside and the matter reconsidered by the Department. 

3. The amended application states that the Tribunal concluded that the delegate’s findings concerning the applicant’s visa application “were incorrect” in that the presiding member concluded that the finding that the primary applicant was required by criterion 3001 to have lodged his visa application within 12 months of the last day that he held a valid substantive visa was incorrect, as the correct interpretation of criterion 3001 required the applicant to have lodged his visa application within 28 days of the last day the visa applicant held a substantive visa.  The essence of the concern expressed in the application as a ground of review is as follows:

   Despite the presiding member of the MRT concluding that the Minister’s delegate’s decision was incorrect, the presiding member affirmed the Minister’s delegate’s decision that the applicant was not entitled to the grant of an Employer Nomination (Residence) (Class BW) visa and did not remit the applicant’s visa application to DIMIA for reassessment. 

Application for summary dismissal

1. It was contended for the respondent that the proceedings should be dismissed summarily on the basis that no reasonable cause of action was disclosed and/or the proceeding was frivolous or vexatious and/or the proceeding was an abuse of the process of the Court. 

2. First it was submitted that under Rule 13.10 of the Federal Magistrates Court Rules 2001 (as they stood at the time of the respondent’s application), read in conjunction with Rule 1.05 of the Federal Magistrates Court Rules 2001 and Order 20 Rule 2 and Order 54B of the Federal Court Rules, no reasonable basis for the application was disclosed and hence there was no reasonable cause of action disclosed within Rule 13.10(a) of the Federal Magistrates Court Rules 2001. 

3. It was contended that the application disclosed no reasonable cause of action in the sense of a cause of action “with some chance of success when considering the allegations of fact contained in the challenged pleading alone” as considered in Pridmore v Magenta Nominees Pty Ltd [1999] FCA 152 at [24]. It was said to be relevant for the Court to take into account factors such as whether the applicant’s case was “so clearly untenable that it cannot possibly succeed” (General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 236), whether it was “apparent that [the case] must fail” if the case were to go to trial in the ordinary way (Webster v Lampart (1983) 177 CLR 598); whether one could say without doubt on the whole of the material that there was no real question to be tried (Fancourt v Mercantile Credits Limited (1983) 154 CLR 87) and that it was relevant to have regard to whether there was absolutely no factual substratum to support the claim made (Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708).

4. It was submitted that in this case the amended application was so clearly untenable that it could not possibly succeed, because any error on the part of the delegate (which the respondent did not concede had been made) would have been cured by the intervention of the Tribunal in reviewing the decision of the delegate (see Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218 affirming Minister for Immigration & Multicultural & Indigenous Affairsv Ahmed [2005] FCAFC 58 which followed Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 561).

5. In Zubair the Court stated at [28]:

   The expression ‘decision’ is not otherwise defined in the Act. There is no textual suggestion that the expression ‘MRT-reviewable decision’ should be restricted in some way so as to refer only to decisions which have been made by a delegate of the respondent after full compliance with the mandatory procedural prescriptions of ss.119 – 121 (in the case of the cancellation of a visa) or other procedural prescriptions applicable to other forms of MRT- reviewable decisions. There is no qualification upon the use of the word ‘decision’ requiring it to be a ‘decision under the Act’: cf Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2. In particular, there is nothing in Pt 5 of the Act which would suggest that the Tribunal does not have the power or obligation to review a decision properly brought before it (see s.347) where the delegate of the respondent may, or may arguably, have failed to comply with a procedural requirement imposed by the Act, or in some other way may, or may arguably, have committed an error of law either in determining the applicable law or in applying the law. There is no reason why the Act, which provides for a full merits review by the Tribunal of decisions which may be brought to it, should impose upon the Tribunal the task of culling out those decisions which may involve jurisdictional error on the part of the original decision-maker. That would impose an unnecessary additional complexity upon the merits review process. Moreover, it may expose the Tribunal’s decision as to the existence of a valid delegate’s decision (a jurisdictional fact on the appellant’s argument) to review by a Court even where (as here) the Tribunal has fully reviewed the decision on the merits. Administrative convenience strongly points to an alternative conclusion to that urged by senior counsel for the appellant. The review process applicable to the Tribunal is a full merits review. As with review under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), the Tribunal is given powers under s 349 to exercise all the powers and discretions that are conferred by the Act on the person who made the decision. It may affirm the decision, vary it, or remit the matter for reconsideration with directions or recommendations, or may set aside the decision and substitute a new decision. The only limit upon its power is that it may not, by varying or setting aside a decision and substituting a new decision, make a decision that is not authorised by the Act or the regulations (s.349(4)). That is similar to the review powers of the Administrative Appeals Tribunal (AAT): see AAT Act, s.43. In that context it has been held that the review by the AAT is available even though the decision-maker at first instance may have made a decision which is legally ineffective: see e.g. Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [38] – [39].

6. After discussing relevant authorities their Honours continued at [32]:

   32 It should therefore be concluded that the Tribunal did have power to review the delegate’s decision. The Tribunal was, in consequence, able to "cure" the defect in the delegate’s decision: see Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116. Because of our conclusion it is unnecessary to enter upon the question whether a direct challenge could have been made to the delegate’s decision in judicial review proceedings in disregard of the procedure for Tribunal review: cf Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57.

7. On this basis it was submitted that the validity or otherwise of the delegate’s decision was legally irrelevant once a Tribunal review had taken place. It was noted that judicial review was sought only of the Tribunal decision. It was contended that as long as the Tribunal decision stood, which it was said must be so in this case as there had been no error on the part of the Tribunal, then it replaced the delegate’s decision and the refusal to grant the visa would remain extant as a result of the Tribunal’s decision, not as a result of the delegate’s decision (see s.349(3) of the Migration Act 1958 (Cth) (the Act)). (Also see Ahmed and Uddin).

8. The respondent contended that the fact that the Tribunal decision was without error as it correctly interpreted criterion 3001 and clause 856.211(2)(a) was implicitly accepted by the applicants in their amended application.  Apart from the claim that the Tribunal should have remitted the application to the Department for reconsideration because of the alleged error by the delegate, no jurisdictional error in the Tribunal’s decision or procedures was suggested.  It was pointed out that the applicant did not contest the factual matters upon which the Tribunal relied to reach its finding that the he did not satisfy criterion 3001 and in particular acknowledged in the amended application that the last substantive visa which he held expired in May 1999.  It was submitted for the respondent that as the Tribunal properly affirmed the delegate’s decision there was no arguable legally available basis for setting aside the Tribunal’s decision. 

1. In the alternative it was submitted that the application should be dismissed as frivolous or as an abuse of process as “plainly untenable and unarguably doomed to fail” (NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 at [61] per Allsop J with whom Conti J agreed).

2. The primary applicant is in gaol.  He expects to be released in March 2007.  He sought an adjournment of the hearing of the application for summary dismissal until after that time.  The adjournment was not granted but he and the second applicant (who was in Court) were given the opportunity to file written submissions after the hearing of the application for summary dismissal.  Written submissions were filed for the applicant on 3 April 2006 in which it was contended that the decisions in Zubair and Ahmed were distinguishable, as they related to cancellation and not refusal of visa applications and dealt with a jurisdictional error of the delegate where the delegate acted without authority.  In this instance it was contended that the delegate had misinterpreted the legislation.  The submissions repeated the request to delay the hearing date until after March 2007 and stated that the applicant did not admit that there was no reasonable cause of action or an abuse of process or that his visa application was bound to fail. 

3. I accept the respondent’s submissions in relation to the effect of Zubair, Ahmed and Uddin.  In Ahmed the Full Court concluded at [43] that Zubair should be followed and in Uddin the Full Court rejected the suggestion that the function of the Tribunal on review was limited to recognising that a delegate had exceeded authority and had no power to (in that case) cancel a visa. (See Wilcox and Branson JJ at [50] and [55] and Bennett J at [78]).

4. As was stated in Ahmed at [34]:

   The definition of “MRT-reviewable decision” in s.338 of the Act is not limited to decisions made without vitiating jurisdictional error.  Thus the “decision” the subject of the “review” is (to use the words of Bowen CJ in Brian Lawlor at 317) a decision of fact, purported to be made under the Act or purported to be made in exercise of the powers conferred by the Act.

5. The delegate set out that the applicant’s last substantive decision expired on 4 May 1999 and stated “Therefore the length of time exceeds 12 months so the applicant does not meet schedule 3 criteria 3001 and 3002”. It is of course the case that as the visa application in question was made more than 12 months after the applicant’s last substantive visa expired, it was outside the 28 day period provided for in clause 3001 of Schedule 3 of the Migration Regulations and it is arguable as to whether the delegate did in fact err in a manner constituting jurisdictional error in making the particular finding in issue in these proceedings (and I note that the Tribunal merely stated that the delegate’s findings in relation to the criteria in paragraph 856.211(2)(a) appear to be incorrect “for a number of reasons”.) Nonetheless, for the purposes of this application, even if the delegate did err in stating or applying the law by referring to 12 months instead of 28 days, any defect in the delegate’s decision of the nature in issue in this case could be and was cured by the decision of the Tribunal, in which no arguable jurisdictional error is suggested or apparent.

6. In particular, contrary to the contention in the amended application, as the Tribunal hearing was a full ‘de novo’ merits review, even if the delegate’s decision had contained an error as suggested, there was no obligation on the Tribunal member to remit the visa application to the Department for “reassessment”.  Consistent with the authority of the Full Court of the Federal Court referred to above, there is nothing in the Migration Act 1958 to suggest that the Tribunal does not have the power, or indeed the obligation, to review a decision properly brought before it.

7. While Zubair and Ahmed were cases which related to cancellation and in which the respective delegates may have failed to comply with a procedural requirement imposed by the Migration Act 1958, it is notable that the Full Court in Zubair did not limit its consideration of the power of the Tribunal to review a delegate’s decision to such circumstances but rather pointed out that there was nothing in Part 5 of the Act (which deals with review by the Migration Review Tribunal) to suggest that the Tribunal does not have the power to review a decision properly brought before it “where the delegate of the respondent may, or may arguably, have failed to comply with a procedural requirement imposed by the Act, or in some way may, or may arguably, have committed an error of law either in determining the applicable law or in applying the law” (Zubair at [28]).

8. Even if the delegate did commit an error of law in suggesting that the applicable time within which to make a visa application to comply with the criteria in clause 3001 of Schedule 3 to the Migration Regulations was 12 months rather than 28 days from the relevant date (albeit that on the facts such an error could have made no difference to the conclusion) the Tribunal had the power to review the decision.

9. As was pointed out in Zubair at [28] there is no reason why the Migration Act 1958 “should impose upon the Tribunal the task of culling out those decisions which may involve a jurisdictional error on the part of the original decision-maker”.  As a consequence, the Tribunal not only had the power to review the delegate’s decision it was also able to “cure” any defect in the delegate’s decision (see Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116). The grounds in the amended application do not raise any arguable case of error in the delegate’s decision of a nature that could not be cured (cf Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294 and the discussion in SZGKO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1254 at [11]). Indeed, there is no claim that the Tribunal failed to state or apply the law correctly (and thus “cure” the defect in the delegate’s decision) and there is no suggestion, nor is it apparent on the material before the Court, that there is otherwise any arguable case of jurisdictional error in the decision or procedures of the Tribunal.

10. Hence, there is no legally available basis, either asserted or apparent, for setting aside the Tribunal’s decision. In these circumstances I am satisfied that the amended application discloses no cause of action with any chance of success. The applicant’s case is so clearly untenable that it is apparent that it cannot possibly succeed and must fail if the case went to a final hearing. I am further satisfied that one can say without doubt on the whole of the material that there is no real question to be tried in relation to the existence of a jurisdictional error in the decision or procedures of the Tribunal. No purpose would be served by either the adjournment sought by the applicant or by a final hearing. In all the circumstances I consider it appropriate to dismiss the proceedings as disclosing no reasonable cause of action pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001. 

11. The amended application does not assert any basis for a claim expressed in terms of a recognised head of jurisdictional error on the part of the Tribunal.  In these circumstances, while I am conscious of the need to exercise care in the exercise of the power of summary dismissal (see NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 at [60] – [61] per Allsop J with whom Conti J agreed), I consider that this is a case in which the proper basis for summary dismissal of the claim is pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001.  On its face there is no arguable cause of action disclosed in the amended application.

12. However, for the sake of completeness, if I am wrong in my view as to the proper basis for summary disposal of the claim in this instance, consistent with what was suggested by Allsop J in NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs, insofar as the applicant’s concern with the decision of the Tribunal involves an assertion or raises a concern which reflects a recognised basis for relief or head of jurisdictional error, such assertion is “plainly untenable and unarguably doomed to fail” (ibid at [61]) and on that basis should in the alternative be dismissed as frivolous under Rule 13.10(b) (see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J). The applicant’s claim is “so obviously untenable that it cannot possibly succeed” and hence frivolous in the sense considered in Burton v Bairnsdale Shire (1908) 7 CLR 76 at 92 as discussed in Pridmore v Magenta Nominees Pty Ltd [1999] FCA 152 at [24] per Nicholson J.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  28 April 2006