Lockington v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 385

FEDERAL COURT OF AUSTRALIA

Lockington v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 385

ELIZABETH LIMA LOCKINGTON & ORS V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS; MEMBER MIGRATION REVIEW TRIBUNAL; PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL
S 246 OF 2003

LANDER J
ADELAIDE
26 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 246 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

ELIZABETH LIMA LOCKINGTON & ORS
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

LANDER J

DATE OF ORDER:

26 MARCH 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.Paragraph 1 of the notice of motion filed in this Court on 8 December 2003 is dismissed.

2.The applicant to pay the costs of the first respondent.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 246 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

ELIZABETH LIMA LOCKINGTON & ORS
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	LANDER J
DATE:	26 MARCH 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. On 7 November 2002 the applicant brought proceedings in the High Court of Australia seeking the issue of the constitutional writs directed to the Migration Review Tribunal.  On 7 February 2003 the matter was remitted to this Court for hearing.  On 10 June 2003 Selway J made orders requiring the applicant to file and serve an amended application, submissions and a memorandum stating with further particularity the matters complained of which would give rise to the issue of the constitutional writs.

2. That order was not complied with and, on 1 August 2003, I made an order dismissing the applicant’s application.  On 8 December 2003 the applicant filed a notice of motion in the same proceedings, seeking an order that the matter dismissed by me be reinstated.  The application was accompanied by an affidavit in which the applicant stated:

   ‘3.I instructed my solicitor Mark Clisby by a facsimile (sent by my migration agent Tony Silva of Silva Migration Services in my presence) of 22 July 2003, dated 27 July 2003 which included a “Notice of Acting in Person”, that I want to act for myself in the matter.

   4.Exhibit marked “A” which is a bundle of documents consisting of 3 pages which include facsimile transmission sheet, facsimile coversheet and “Notice of Acting in Person”.

   5.“Notice of Acting in Person” was not lodged at the Court by Mark Clisby and thus the matter was dismissed on 1 August 2003 by Lander J.

   6.I was not able to put my case to His Honour Lander J or have a hearing.

   7.I am still unable to find a barrister to represent me.  Once I find a barrister, I will provide details on the merits of my case in a separate affidavit.’

3. A Notice of Acting, dated 22 July 2003, was also filed on 8 December 2003.

4. The matter came before me again on 20 February 2004, when I made the following relevant orders:

   ‘2.Direct the applicant to file any further affidavits upon which she intends to rely evidencing the facts upon which she supports her application for reinstatement of her proceedings, within 28 days.

   3.Appoint Friday 19 March 2004 at 9.00am for the return of any subpoena.

   4.        Adjourn directions hearing until 26 March 2004 at 9.00am.’

5. Order number 3 referred to leave which I also gave on 20 February 2004 for the first respondent to issue any subpoena, that the first respondent might be advised, directed to Mr Mark Clisby relating to the production of any file or files relating to the applicant.  The subpoena was issued and was returned before me on 19 March 2004.  At that time, I adjourned the first respondent’s oral application to inspect the documents which were produced in answer to that subpoena.  It seemed to me at that time that the applicant had not identified the matters upon which she relied in support of her application to have the matter reinstated.

6. At the same time, I brought to the applicant’s attention that she had not complied with my previous orders and, in particular, order 2 made on 20 February 2004.  She advised me that she thought she had until 26 March to comply with that order.  I advised her that that was incorrect.  However, I extended the time within which she had to comply with my order of 20 February until 12 noon on 24 March 2004.  She has still not complied with that order.

7. When the matter was called on this morning, a court officer attempted to make telephone contact with Ms Lockington at the last known given telephone number and, in particular, the telephone number at which she attended on 19 March.  There was no answer.  In those circumstances, I can assume that she is not attending this hearing this morning.

8. Mr Tredrea has made an application that the notice of motion of 8 December 2003, seeking reinstatement of the matter dismissed by me on 1 August 2003, be dismissed.  In the circumstances, where the applicant has evidenced an intention not to proceed with that notice of motion, and in circumstances where she has twice failed to comply with orders of the Court directing her to file affidavits in support of her application, it seems to me that the order sought by Mr Tredrea should go.  There will be orders:

   1.That paragraph 1 of the notice of motion filed in this Court on 8 December 2003 is dismissed.

   2.        The applicant to pay the costs of the first respondent.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:            2 April 2004

Counsel for the Applicant:	The Applicant did not appear
Counsel for the First, Second and Third Respondents:	K Tredrea
Solicitors for the First, Second and Third Respondents:	Sparke Helmore
Date of Hearing:	26 March 2004
Date of Judgment:	26 March 2004