M24 of 2003 v Minister for Immigration - [2005] FMCA 347

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M24 of 2003 v MINISTER FOR IMMIGRATION

[2005] FMCA 347

MIGRATION – PRACTICE AND PROCEDURE – Adjournment application – short adjournment required due to unavailability of pro-bono counsel – whether application should be refused – no arguable case – previous adjournment due to unavailability of respondent’s counsel – desirability of pro-bono representation.

Sali v SPC Ltd & Anor (1993) 116 ALR 625
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Smith & Anor v Gannawarra Shire Council & Anor (2002) 4 VR 344

Applicant:

APPLICANTS M24 of 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 705 of 2004

Delivered on:

11 March 2005

Delivered at:

Melbourne

Hearing Date:

11 March 2005

Judgment of:

McInnis FM

REPRESENTATION

Pro-bono Counsel for the Applicant:

Miss K. Blaire

Counsel for the Respondent:

Ms J Macdonnell

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application be adjourned for hearing on 14 April 2005 at 2.15 p.m.
Costs be costs in the cause.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 705 of 2004

APPLICANTS M24/2003

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this application counsel for the applicants has sought a short adjournment. The basis upon which the adjournment is sought is to enable other counsel currently retained on a pro bono basis to appear. That counsel had, I understand, notified the respondent of a possibility of an adjournment last Friday. As sometimes happens, counsel become involved in a hearing which has taken longer than might have been anticipated, thereby preventing counsel from appearing in this matter. It would seem that at least on Monday of this week, that is, on 7 March 2005, the unavailability of counsel became apparent and the court was asked to consider whether an adjournment would be granted. That request was made to my associate.
It was made clear that perhaps the matter may not be refixed until possibly June this year. Since those early inquiries were made

I determined that I could perhaps accommodate this matter on 22 March 2005 which would result in a delay of some 11 days. That date, when I announced it to the parties, proved unsuitable to counsel for the respondent and it would appear that another date may be necessary. If I were minded to allow the adjournment then for the sake of this decision I indicate that the other potential date may well be a date in the week commencing 4 April 2005 and that would of course result in a delay of approximately three weeks.
In support of the application for adjournment, pro bono counsel provided by facsimile transmission to the respondent and to the court an explanation in relation to the basis upon which the adjournment is sought. Ms Blaire, who appears today, appears as pro bono counsel, as I understand it, solely for the purpose of seeking the adjournment and has readily conceded does not have familiarity with the application or sufficient familiarity to proceed to represent the applicants for this hearing. I have no reason to doubt that that is the case.
It is noted that the hearing had originally been listed on 24 January 2005 and it is understood an adjournment was granted to 10 February 2005. I do not think there is any dispute that earlier in December 2004 the respondents sought and obtained an adjournment of the hearing date for the reason that counsel was otherwise listed in another matter that day. Ultimately, as it turns out, the matter was adjourned to this day.
The respondent has strongly and vigorously opposed the adjournment. I have been referred to numerous authorities which support the proposition that the question of an adjournment is a matter for discretion. Of course it is a discretion which must be exercised judicially and I accept it is a discretion which must be exercised having regard to a number of factors. Those factors include an analysis which has been properly made by the respondent's counsel of the strength of the case. In essence, without reciting in detail all the authorities referred to by counsel, it is argued that the facts and circumstances of this application are clear in that the court could readily conclude that res judicata applies as a bar to this application and hence, as

I understand it, that factor alone is a factor which should be given considerable weight and indeed I might even venture to suggest may well be determinative of the outcome of the application. Of course that factor taken alone is a significant factor and a factor which I give significant weight to in the circumstances of this case without reciting the history. It appears clear to me that there is a strong case, that is, a strong arguable case for the respondent in this instance that res judicata may well apply as a bar to the application.
It is further relevant for the court in the exercise of its discretion to take into account the proper management of cases before this court. I have been referred to a number of authorities in relation to that issue by the respondent. Perhaps of significance is the decision of the High Court in Sali v SPC Ltd & Anor (1993) 116 ALR 625 where at page 629 the court states that:
“In determining whether to grant an adjournment the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in a court as well as the interests of the parties.”
It seems to me that that statement of principle is a statement which clearly should guide this court in the exercise of its discretion. I am also, however, mindful of statements of principle in other decisions and have noted the decision in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. I note in particular that decision was followed by the Court of Appeal in the Supreme Court of Victoria in the matter of Smith & Anor v Gannawarra Shire Council & Anor (2002) 4 VR 344. In that case Winneke P states the following at page 352:
“In this day and age when the courts are under pressure to deal with cases before them in an expeditious fashion and where, accordingly, case management has become a significant aspect of the curial processes, the administration of justice still requires that the courts ensure, so far as practicable, that justice be administered evenhandedly so that each party to a dispute is in a position, within the bounds of reason, to present his or her case to the court in its best light and in an orderly fashion. …”
I adopt and apply that reasoning to the present application. In this application there is no doubt that the respondent has raised a significant and well‑reasoned argument which would be clearly persuasive to the court in establishing that res judicata may well apply. Cases involving judicial review, however, are not cases which are normally able to be grasped by unrepresented applicants, particularly those of the kind before me in this application. Hence, in my view, in considering the administration of justice in an even‑handed way and in considering the principles that parties should be allowed to present their case to the court in the best light and in an orderly fashion, it is my view that for this court it is also relevant and appropriate to take into account that counsel have offered services on a pro bono basis in order to assist not simply the applicants but the court process.
The value of pro bono counsel should not be underestimated. It provides a useful source of often expediting cases or at least enlightening the court as to what may be possible arguments to be advanced for and on behalf of applicants who otherwise would be unrepresented. Representation of parties in applications of this kind is desirable. Sound representation based upon an appropriate analysis of the merits of a case is indeed something that should be encouraged. Whilst I can readily appreciate that in the present application there may be grave concerns by the respondent expressed in relation to the merits of this application and whether or not there is indeed an arguable case, I am not prepared to conclude that the case is so hopeless that it should not be the subject of an adjournment.
I further take into account that although there is some inconvenience to the court in the management of its lists and otherwise in case management where adjournments occur, I do not find in the present case that that inconvenience outweighs the principles of justice which are involved in permitting people to be represented by pro bono counsel, particularly given where the adjournment in this case is of short duration, where an adjournment on a previous occasion was granted as a result of the unavailability of counsel for the respondent and in circumstances where the res judicata arguments were then known to and indeed raised by the respondent.
It seems further to me that in cases of this kind there is an extraordinary imbalance of resource and power which is self‑evident. The respondent is a model litigant; having received notice of this application for adjournment some five days ago, she has chosen to oppose the adjournment in circumstances where the respondent already had the advantage of an adjournment based on a similar ground, namely, unavailability of counsel. It is of some concern to me that in those circumstances this application for adjournment should be so vigorously opposed and has required the attendance of counsel today. Given it was a short adjournment which could have been arranged by way of mention, that is a matter of some regret.
In all the circumstances, taking those matters into account, it is my view that it would be in the interests of justice in the exercise of my discretion to allow a brief adjournment. Accordingly, the matter will be adjourned to a date to be fixed, which I note at this stage will not be a date fixed on 22 March 2005 as that is not convenient to counsel for the respondent. I grant the respondent that indulgence yet again. It seems to me it is desirable to maintain some degree of continuity in these matters and in fixing a date, at this stage tentatively, subject to the availability of counsel, I will indicate that the likely date in this matter will be 10.15 am on 4 April 2005.
In all the circumstances it seems to me that the appropriate order in relation to costs is that those costs be costs in the cause.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 11 March 2005