Ling, Y. v Senator Bolkus, N
[1994] FCA 33
•10 Feb 1994
3 3
JUDGMENT No. ........ ........ . J ,..,.
IN THE FEDEFIAL COURT OF AUSTKRLlA ) \ AUSTRALIAN CAPITAL TERRITORY i
1 NO. ACT G 104 of 1993 DISTRICT REGISTRY 1 GENERAL DIVISION
BETWEEN: YANG LING
AND: SENATOR NICK BOLKUS, Minister
for Immigration and EthnicApplicant
Af f airs Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER : Neaves J. DATE OF ORDER
10 February 1994 l 1 FEB 1994 WHERE MADE Canberra THE COURT ORDERS THAT:
36 of the Federal Court Rules. 1. The motion notice of which was given on 25 January
1994 be dismissed.
2. The application filed on 16 November 1993 be dismissed.
3. The applicant pay the costs of the respondent of and incldental to the application and the motion, including any reserved costs.
Note: Settlement and entry of orders is dealt with in Order
IN THE FEDERAL COURT OF AUSTRALIA )
1
AUSTRALIAN CAPITAL TERRITORY 1 No. ACT G 104 of 1993 DISTRICT REGISTRY GENERAL DIVISION 1
BETWEEN: YANG LING
AND: SENATOR NICK BOLKUS, Minister
for ~mmlgration and EthnicApplicant
Af f airs Respondent
CORAM: Neaves J.
m: 10 February 1994
REASONS FOR JUDGMENT
This is a motion on notice on behalf of Yang Ling ("the applicant") for an order extending the time within which to make an application under the A d m i n i s t r a t i v e D e c i s i o n s ( J u d i c i a l R e v i e w ) A c t 1977 (Cth) ( "the Judicial Review Act") for an order of review in respect of the decision made by a delegate of Senator Nick Bolkus, the Minister for Immigration
not have the status of a refugee within the meaning of the and Ethnic Affairs, ("the respondent") that the applicant does Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967.
It appears that the decision sought to be reviewed was made on 16 April 1993 and was communicated by a letter of that date sent to the applicant by certified mail on 19 April 1993. The Court was informed that, by virtue of the provisions of reg.173(2) of the Migration Regulations, being Statutory Rules 1989 No.365 as amended, and reg.8.2 of the Migration (1993) Regulations, service of the letter is to be taken to have been effected on the applicant 5 working days after the date of posting, that is to say on 27 April 1993. It also appears that, following receipt of that letter, no request was made by the applicant pursuant to s.13(1) of the Judicial Review Act for a statement in writing setting out the findings on material questions of fact and the other matters
referred to in that provision. It follows that, applying s.11 of the Judicial Review Act, the prescribed perlod within which an application for an order of revlew in respect of the decision might be lodged expired on the twenty-eighth day after 27 April 1993, namely on 25 May 1993. The application for an order of review, which is dated 12 November 1993, was not lodged until 16 November 1993, so that an extension of almost 6 months is required if the substantive application is to be permitted to proceed to a hearing.
It may be noted in passing that, when the proceeding was before the Court on 22 December 1993, an argument was foreshadowed on behalf of the applicant that, by reason of circumstances other than those to which I have referred, the correct conclusion was that the application had been lodged within the time prescribed by s.11 of the Judicial Review Act. That argument is, however, no longer advanced.
Notice of the motion for an extension of time within which to bring the substantive applicatlon was given on 25 January 1994. It was given after a notice of objection to the competency of the applicatlon had been filed on behalf of the respondent on 1 December 1993. The objection to competency was based on the ground that the application had been lodged outside the period prescribed by s.11 of the Judicial Review Act and in circumstances where that period had not been extended by the Court.
The respondent did not consent to the extension of time being granted - an understandable position in the light of the filing of the notice of objection to the competency of the application on the ground that it was filed outside the prescribed time. Somewhat surprisingly, however, counsel for the respondent informed the Court that his instructions were not to oppose the granting of the extension of time. Counsel put no submissions to the Court concerning the exercise of its discretion other than to submit, without elaboration, that the
the delay. He further said that he could not point to any applicant had failed to give a satisfactory explanation for specific matter of prejudice that would be suffered if the extension were granted. In this situation it is appropriate to refer to the first of the principles to guide the Court in the exercise of its discretion distilled by Wilcox J. in
Hunter Valley Developments Fty Ltd v Cohen (1984) 3 FCR 344 at pp.348 - 9: His on our expressed that principle in the
following terms : "Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The 'prescribed period' of twenty-eight days is not to be ignored (Ralkon Agricultural Co. Pty Ltd v. Aboriginal
Development Commission (1982) 43 A.L.R. 535 at 550).
Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained
(Lucic v. Nolan (1982) 45 A.L.R. 411 at 416). It is a
pre-condition to the exercise of discretion in his favour that the applicant for extension show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time (Duff at
485; Chapman v . Reilly unreported (Federal Court of
Australia, Neaves J., 9 December 1983) at 7).
The only material filed in support of the motion is the affidavit of Marion Rose Le sworn on 21 December 1993 and filed on 25 January 1994.
Mrs Le, who is the President of the Indo-China Refugee Association (ACT), deposes that she is the applicant's representative and is authorised to swear the affidavit on the applicant's behalf. The affidavit refers to the proceeding numbered WA G 215 of 1992 instituted as a representative
proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) in the Western Australia District Registry of this Court and intituled Zhang De Yong v The Minister for Immigration, Local Government and Ethnic Affairs. Annexed to the affidavit is a copy of a letter dated 22 April 1993 addressed to the Minister for Immigration, Local Government and Ethnic Affairs by Gallens Crowley & Chamberlain, Barristers and Solicitors, on behalf of the applicant. That letter reads in part:
"We formally advise you that our client is a member of the group proceedings in the Federal Court of Australia No. WAG 215 of 1992 Zhang Yong and Minister for Immigration Local Government and Ethnic Affairs.
Could you please confirm by return facsimile that you will take no steps to deport our client until such time as that application is determined. We understand that similar requests have been made by other 'class members' to this action, which have been refused. Those members have then successfully sought Federal Court orders restraining the Department from deporting those members. Unless we receive your assurance not to deport by return facsimile, we will have no option but to seek similar orders. Given the previous actions and your awareness of the Court attitude to this issue if we are forced to make a Federal Court Application we will seek our costs from your Department.
We look forward to your prompt response."
Also annexed to the affidavit is a copy of a letter dated 29 April 1993 addressed by the Australian Government Solicitor to Messrs Gallens Crowley & Chamberlain informing that firm that the Department of Immigration, Local Government and Ethnic Affairs was prepared to give an undertaking not to remove the present applicant from Australia "until the proceedings in the Federal Court of Australia No. WA G 215 of
1992 ... are determined".
The affidavit refers to the fact that on 6 October
1993 judgment in the representative proceeding was given by
French J. The judgment, which dismissed the application, is
reported (1993) 118 ALR 165. It is convenient, before
proceeding further, to make a short reference to that
judgment .
As appears from the judgment (see the report at p. 169), the group members to whom the proceeding related were said to be persons present in Australia -
(a) who had sought recognition of their status as refugees within the meaning of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol; (b) whose applications had been refused since 4 March 1992; and (c) who had sought review of the decisions to refuse their applications and where, following review by the Refugee Status Review Committee, a further decision had been made on or before 30 June 1993 again refusing their applications.
French J. identified the following as the issues in the proceeding (see the report at p.170):
"1. Whether natural justice requires that an applicant for refugee status whose application has been refused at first instance and who seeks administrative review of the application be afforded the opportunity of an oral hearing before the delegate who makes the decision on the review.
2. Whether those who have sought review of applications have been refused on review, constitute a decisions to refuse their applications, and whose group of persons who have claims arlsing out of the same, similar or related circumstances so as to support a representative action on behalf of the members of the
group. "
His Honour, in effect, answered Question 2 in the affirmative and Question 1 in the negative
The balance of hks Le's affidavit (pars 7 - 12
inclusive) reads as follows:
"7. I am aware that a number of members of the class action have lodged appeals against the decision by His Honour Mr Justice French and to the best of my knowledge and belief, these appeals have not been determined.
8. On 6 April 1993 His Honour Mr Justice Lee made an order in relatlon to members of the class action that the decision by the respondent refusing the application for refugee status be suspended until further order.
9. It was my genuine belle£ that the affect [slc] of the order of Mr Justice Lee combined with the applicant's membership of the class action and the respondent's undertaking not to deport the applicant meant that the applicant did not have to lodge this application for an order of review until the issues for determination in Zhang's case were finally decided .
10. The respondent has at all times been aware that the applicant has not accepted the decision made on 26 March 1993 [sic].
11. I am advised by MS Yang and verlly believe that her delay in issuing the application pending the result of the class action was caused by the desire to avoid unnecessary legal proceedings and therefore unnecessary legal costs for both respondent and herself if the class action had been successful.
12. It is my genuine understanding and belief that given the respondent's knowledge of our client's intention to appeal the refusal to grant him [sic] refugee status, and that the fact that the respondent has given an undertaking not to deport the applicant
order to review." applicant's delay in lodging her application for an then the respondent is not prejudiced by the
As to par.7 of the affidavit, reference to the records of the Court discloses that judgment stands reserved by a Full Court of this Court upon an appeal (numbered WA G 142 of 1993) against the judgment of French J. to which reference has been made. The records of the Court also disclose that that appeal was instituted by Chen Zhen Xi and some 49 other persons, those persons not including the present applicant.
As to par.8 of Mrs Le's affidavit, the precise terms of the order made by Lee J. on 6 April 1993 are not set out nor is a copy of the formal order annexed or exhibited to the affidavit. During the course of argument, however, counsel for the applicant agreed that par.8 of the affidavit is not to be read as meaning that an order of the kind there referred to was made in relation to the decision that the present applicant does not have the status of a refugee. Counsel accepted the correctness of the statement made to the Court on 22 December 1993 by counsel for the respondent that the order made by Lee J. on 6 April 1993 related to three persons, Truong Buu Dien, Tran Chau Tuan and Hyung Tinh Luong, and that his Honour made a further order on 21 April 1993 in similar terms relating to three other persons, Yuan Lin Ying, Yuan Yao Jiu and Liang Jian Hua. One may assume that those orders were made under s.15(1) (a) of the Judicial Review Act and had the
the decisions refusing refugee status to the person named in effect of suspending, until further order, the operation of the orders. I did not understand counsel for the applicant to dispute the statement made by counsel for the respondent on 22 December 1993 that the orders of Lee J. were discharged by French J. on 19 October 1993. I should add that, even if an order in similar terms had been made in relation to the present applicant, the making of that order, in my opinion, would have provided no support for the extension of time now sought.
The case for an extension of time advanced on behalf of the applicant relied on the absence of prejudice to the respondent if the extension were granted and upon par.9 of the affidavit. Counsel asserted that Mrs Le was a lay person who could not be expected to understand the distinction between the issue that arose in the representative proceeding brought in the Western Australia District Registry of the Court and the Issues on which the applicant wishes to rely if the application filed on 16 November 1993 proceeds. It was submitted that, even if Mrs Le completely misunderstood the effect of the order made by Lee J. on 6 April 1993 and the effect of the undertaking given by the respondent, nevertheless the holding by her of that belief was a sufficient explanation of the delay in the filing of the substantive application. Much was made of the fact that the contents of the paragraph had not been objected to, that no
answering material had been filed on behalf of the respondent and that Mrs Le had not been required to attend for cross- examination upon the affidavit. It is a sufficient answer to the latter part of counsel's submission to say that it is for the applicant to satisfy the Court that the extension sought should be granted. It is not for the respondent to establish that the applicant does not have a case for an extension of time: Hickey v Australian Telecommunications Commission ( 1983) 47 ALR 5 17 at
p.523 (Lockhart J.). See also Lucic v Nolan (1982) 45 ALR 411 at p.416 (Fitzgerald J.). In relation to the earlier part of the submission, the basis on which 1.k~ Le formed the belief to which she deposes has not been explained and, in the absence of such explanation, it is difficult to give much weight to her assertion, particularly as she is known to have had extensive experience in relation to matters of this kind and the fact, as appears from her affidavit, that at the relevant time she had the assistance of a leading firm of solicitors in this Territory. Clearly, the order made by Lee J. on 6 April 1993 had no application to the present applicant. The undertaking given by the respondent not to remove the applicant from Australia pending determination of the representative proceeding then pending in the Western Australia District Registry of the Court could not reasonably have been interpreted as amounting to an agreement to extend the time to
bring proceedings under the Judicial Review Act on grounds other than those raised in the representative proceeding. There is no evidence to suggest that Mrs Le was led to the belief to which she deposes by anything done by the respondent or by officers of his Department.
As to par. l0 of the affidavit, there is no evidence before the Court that the respondent was made aware that the applicant was challenging the decision to refuse her refugee status on any ground other than the ground of denial of natural justice, that being the ground argued in the representative proceeding.
Paragraph 11 is a mere assertion on information and belief unsupported by any material showing when, the circumstances in which, or the material upon which, the applicant is said to have delayed instituting legal proceedings on her own behalf.
As to par.12, I have already referred to the respondent's position that he is unable to point to any specific matter of prejudice.
The grounds on which the order of review is sought, as set out in the substantive application, may be summarised as follows:
(a) that the respondent breached the rules of natural
justice by failing to provide the applicant the opportunity of an oral hearing prior to making the
final decision refusing refugee status;
(b) that the decision refusing the applicant refugee status was an improper exercise of the power conferred by the Migration Act 1958 (Cth) in that - (i) irrelevant considerations were taken into
account, namely hearsay material with no
basis in fact;(ii) relevant considerations were not taken into account, namely the well grounded fear of persecution held by the applicant should she be deported to the People's Republic of China;
(iii) the decision was so unreasonable that no reasonable person could have made the decision.
No particulars have been provided to the Court as to the precise matters on which the applicant intends to rely in the event that the substantive application is permitted to proceed. There is, thus, no material before the Court on which a view can be formed as to the merits of the application or, indeed, whether the applicant has an arguable case, yet those are matters that might properly be taken into consideration in the exercise of the Court's discretion in the applicant's favour.
There is also a matter of public interest to be taken into account. The situation is that the applicant chose to delay instituting a proceeding to challenge the decision refusing her refugee status pending the determination of the representative proceeding commenced by C l r Zhang de Yong, a proceeding which, if successful, would, she believed, be of
was determined adversely to her interests, she chose to advantage to her and that, when the representative proceeding commence a proceeding on her own behalf seeking to raise issues other than those litigated in the representative proceeding for which purpose she seeks to be treated as if she had commenced the proceeding in timely fashion. Speaking generally, the approach must be taken that it is not in the public interest to allow an applicant to pursue such a course. No doubt the circumstances of each case must be considered on their merits. There is, however, nothing in the material before the Court to suggest that a different approach should be taken in the present case.
Taking all these matters into account, the material put before the Court on behalf of the applicant fails to persuade me that the extension of time sought should be granted.
In the result, the motion notice of which was given on 25 January 1994 is dismissed. It follows that the application filed on 16 November 1993 must also be dismissed. The applicant must pay the costs of the respondent of and incidental to the application and the motion, including any reserved costs.
I certify that this and the preceding 12 pages are a true copy of the Reasons for Judgment herem of the Honourable Mr Justice Neaves.
Dated: 10 February 1994
Counsel for the applicant : Mr C.S. Erskine Solicitors for the applicant : Gallens Crowley & Chamberlain
Counsel for the respondent : Mr G.C. McCarthy Solicitors for the respondent : Australian Government
Solicitor
Date of hearing : 2 February 1994 Date of judgment : 10 February 1994
IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY 1
I No. ACT G 105 of 1993 DISTRICT REGISTRY j ) GENERAL DIVISION ) BETWEEN: L1 CHAN TIAN
Applicant
AND: SENATOR NICK BOLKUS, Minister for Immigration and Ethnic Affairs
Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER : Neaves J. DATE OF ORDER 10 February 1994 WHERE MADE Canberra THE COURT ORDERS THAT:
1. The motion notice of which was given on 25 January
1994 be dismissed.
2. The application filed on 16 November 1993 be dismissed.
3. The applicant pay the costs of the respondent of and incidental to the application and the motion, including any reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
1
AUSTRALIAN CAPITAL TERRITORY 1
I No. ACT G 106 of 1993 DISTRICT REGISTRY j GENERAL DIVISION BETWEEN: TRAN TUAN CHAU
Applicant
AND: SENATOR NICK BOLKUS, Minister for Immigration and Ethnic Affairs
Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER : Neaves J. DATE OF ORDER 10 February 1994 WHERE MADE Canberra THE COURT ORDERS THAT:
1. The motion notice of which was given on 25 January 1994 be dismissed.
2. The application filed on 16 November 1993 be dismissed.
3. The applicant pay the costs of the respondent of and incidental to the application and the motion, including any reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) 1 AUSTRALIAN CAPITAL TERRITORY 1
1 No. ACT G 107 of 1993 DISTRICT REGISTRY 1 GENERAL DIVISION j BETWEEN: YUAN LIN YING
Applicant
AND: SENATOR NICK BOLKUS, Minister for Imrnigratlon and Ethnic Affairs
Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER : Neaves J. DATE OF ORDER 10 February 1994 WHERE MADE Canberra THE COURT ORDERS THAT:
1. The motion notice of which was given on 25 January 1994 be dismissed.
2. The application filed on 16 November 1993 be dismissed.
3. The applicant pay the costs of the respondent of and incidental to the application and the motion, including any reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
1
AUSTRALIAN CAPITAL TERRITORY j No. ACT G 108 of 1993 DISTRICT REGISTRY ) GENERAL DIVISION j BETWEEN: YUAN YAO JIU
Applicant
AND: SENATOR NICK BOLKUS, Minister for Immigration and Ethnic Affairs
Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER : Neaves J. DATE OF ORDER 10 February 1994 WHERE MADE Canberra THE COURT ORDERS THAT:
1. The motion notice of which was given on 25 January 1994 be dismissed.
2. The application filed on 16 November 1993 be dismissed.
3. The applicant pay the costs of the respondent of and incidental to the application and the motion, including any reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY 1 I No. ACT G 109 of 1993 DISTRICT REGISTRY GENERAL DIVISION j BETWEEN: LIANG JIAN HUA
Applicant
AND: SENATOR NICK BOLKUS, Minister for Immigration and Ethnic Affairs
Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER : Neaves J. DATE OF ORDER 10 February 1994 WHERE MADE Canberra THE COURT ORDERS THAT:
1. The motion notice of which was given on 25 January
1994 be dismissed.
2. The application filed on 16 November 1993 be dismissed.
3. The applicant pay the costs of the respondent of and incidental to the application and the motion, including any reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
) 1
AUSTRALIAN CAPITAL TERRITORY 1
1 No. ACT G 110 of 1993
| j | DISTRICT REGISTRY | 1 |
| ; | 1 | |
| i | GENERAL DIVISION | ) |
BETWEEN: HUYNH LUONG TINH
Applicant
AND: SENATOR NICK BOLKUS, Minister
for Immigration and Ethnic
Af f airs Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER : Neaves J. DATE OF ORDER 10 February 1994 WHERE MADE Canberra THE COURT ORDERS THAT:
1. The motion notice of which was given on 25 January
1994 be dismissed.
2. The application filed on 16 November 1993 be dismissed.
3. The applicant pay the costs of the respondent of and incidental to the application and the motion, including any reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) 1 AUSTRALIAN CAPITAL TERRITORY 1
1 No. ACT G 111 of 1993 DISTRICT REGISTRY GENERAL DIVISION 1 BETWEEN: TRUONG DIEN BUU
Applicant
AND: SENATOR NICK BOLKUS, Minister for Immigration and Ethnic Affairs
Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER : Neaves J. DATE OF ORDER 10 February 1994 WHERE MADE Canberra THE COURT ORDERS THAT:
1. The motion notice of which was given on 25 January 1994 be dismissed.
2. The application filed on 16 November 1993 be dismissed.
3. The applicant pay the costs of the respondent of and incidental to the application and the motion, including any reserved costs.
Note: Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
1
AUSTRALIAN CAPITAL TERRITORY j
1 No. ACT G 112 of 1993 DISTRICT REGISTRY ) 1 GENERAL DIVISION 1 BETWEEN: FAN NE1 MING
Applicant
AND: SENATOR NICK BOLKUS, Minister
for Immigration and Ethnic
Af f airs Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER : Neaves J. DATE OF ORDER 10 February 1994 WHERE MADE Canberra THE COURT ORDERS THAT:
1. The motion notice of which was given on 25 January
1994 be dismissed.
2. The application filed on 16 November 1993 be
dismissed.
3. The applicant pay the costs of the respondent of and incidental to the application and the motion, including any reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY )
1 No. ACT G 113 of 1993 DISTRICT REGISTRY
) )
GENERAL DIVISION j BETWEEN: LOR SONG TENAG
Applicant
AND: SENATOR NICK BOLKUS, Minister
for Immiaration and Ethnic -
A£ f airs Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER : Neaves J. DATE OF ORDER 10 February 1994 WHERE MADE Canberra THE COURT ORDERS THAT:
1. The motion notice of which was given on 25 January 1994 be dismissed.
2. The application filed on 16 November 1993 be dismissed.
3. The applicant pay the costs of the respondent of and incidental to the application and the motion, including any reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY j
1 No. ACT G 114 of 1993 DISTRICT REGISTRY GENERAL DIVISION j BETWEEN: ZHOU HA1 TA0
Applicant
AND: SENATOR NICK BOLKUS, Minister
for Immigration and Ethnic
Af f airs Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER : Neaves J. DATE OF ORDER 10 February 1994 WHERE MADE Canberra THE COURT ORDERS THAT:
1. The motion notice of which was given on 27 January 1994 be dismissed.
2. The application filed on 16 November 1993 be dismissed.
3. The applicant pay the costs of the respondent of and incidental to the application and the motion, including any reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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