MZXES v Minister for Immigration

[2006] FMCA 316

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXES v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 316

MIGRATION – Protection Visa – Refugee Review Tribunal.

PRACTICE AND PROCEDURE – Application for summary dismissal – where non appearance of Applicant – preferable to proceed with summary dismissal rather than dismissal for non-appearance – summary dismiss of principles – whether principles of High Court in Dey v Victorian Railways Commissioners still apply – effect of s.17A of the Federal Magistrates Act – no need to find application ‘hopeless’ or ‘bound to fail’ – whether reasonable prospect of success – costs – indemnity costs appropriate.

Federal Magistrates Court Rules 2001, rr.13.03A, 13.10, 13.10(b), 13.10(c), 13.11, 13.11(3)(b), sch.1
Federal Magistrates Act 1999, s.17A

Dey v Victorian Railways Commissioners (1948) 78 CLR 62

Applicant: MZXES

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 1503 of 2005

Judgment of: McInnis FM

Hearing date: 1 March 2005

Delivered at: Melbourne

Delivered on: 1 March 2006

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Ms M.D. O’Regan

Solicitors for the Respondent: Clayton Utz Lawyers

ORDERS

1. The application filed 25 November 2005 be dismissed pursuant to Rule 13.10(b) and/or 13.10(c) of the Federal Magistrates Court Rules 2001 on the grounds that the proceedings are vexatious and/or an abuse of process.

2. The Applicant pursuant to Rule 13.11(3)(b) may not institute any proceeding in relation to the decision of the Refugee Review Tribunal dated 18 February 2000 against the First and/or Second Respondent without the leave of the Court.

3. The Applicant shall pay the First Respondent's costs fixed in the sum of $3,100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1503 of 2005

MZXES

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application by the First Respondent by Notice of Motion filed 17 January 2006 effectively seeking orders for summary dismissal of an application filed by the Applicant on 25 November 2005 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 February 2000.

2. It is sufficient for present purposes to note that that decision of the Tribunal had affirmed a decision of a delegate to refuse a protection visa to the Applicant.  The Notice of Motion seeking summary dismissal and other orders which I shall deal with presently is supported by an affidavit sworn by Maria Denise O'Regan on

   
   

   16 January 2006.  That affidavit sets out the chronology of events to which I shall refer presently.

3. It should also be noted for present purposes that the Applicant has not appeared this day. It is my view that on the material before me, including an affidavit of service sworn by Carlo Novak on 28 February 2006 that the Applicant, albeit served on an address in Queensland, has been given appropriate notice of these proceedings, and the non‑appearance of the Applicant on this occasion should not encourage the Court to simply make an order under Rule 13.03A of the Federal Magistrates Court Rules 2001 (“the Rules”) dismissing the application on the basis of the Applicant's non-appearance.

4. It is indeed a Notice of Motion filed and relied upon by the First Respondent which is before the Court this day, and I do not believe it is appropriate in those circumstances to simply dismiss the substantive application based on the non-appearance this day of the Applicant.  In any event, I am satisfied, both from the affidavit of Carlo Novak referred to earlier, and also from material on the Court file, that the Applicant has been properly served at the new address in Queensland which is an address identical to an address notified by the Applicant to the Court in correspondence on the Court file.

5. The chronology of events in this matter may briefly be summarised.  On 18 February 2000, the Tribunal made the decision referred to earlier in this judgment affirming the delegate's decision to refuse the Applicant a protection visa.  On a date unknown thereafter the Applicant apparently was joined as a party to what is often described as the Muin and Le representative proceeding in the High Court of Australia.  In that Court, on 25 November 2002, Gaudron J made orders in relation to the disposal of those proceedings, both in relation to this Applicant and others.  Leave was granted to individuals to commence proceedings to seek an order nisi in relation to their respective Tribunal decisions on or before 1 June 2003.

6. On 21 May 2003, the Applicant filed an application for an order nisi in the High Court.  Those proceedings were allocated number M 118 of 2003.  The proceedings were remitted by the High Court to the Federal Court and then allocated proceeding number V 713 of 2003.  On 21 June 2004, Kiefel J of the Federal Court dismissed the application and made an order in relation to costs.  The decision of Kiefel J was then the subject of a notice of appeal filed by the Applicant in the Federal Court on 6 July 2004.  That appeal was allocated proceeding number Q 115 of 2004.

7. On 10 November 2004, a Full Court of the Federal Court ordered that the appeal be dismissed as incompetent and that the appellant's application for leave to appeal be refused.  On 8 December 2004, the Applicant then filed what I take to be a special leave application in the High Court of Australia.  That special leave to appeal application was dealt with by the High Court on 9 November 2005 where Gummow and Kirby JJ made orders that the application for leave to appeal to the Court from the judgment and order of the Full Court of the Federal Court Australia given and made on 10 November 2004 be dismissed.

8. The application before this Court provides what I would describe as hopelessly inadequate particulars of the grounds relied upon for judicial review of a Tribunal decision.  The Applicant simply asserts that the decision of the Tribunal was "made with error of law and my claims not considered in accordance with the Refugee Review Law."  The application further goes on to state, "The RRT decision was wrong and a breach of natural justice."

9. In an affidavit purportedly in support of the application, the Applicant briefly deposes that he was not satisfied with the decision of the Tribunal and asked for it to be set aside and claims it was made "with mistake of law". He further asserts the decision was a "breach of natural justice and bias". It is evident from both the application and the affidavit in support that there are entirely inadequate grounds now provided in support of the application before this Court, and on that basis alone the Court would be minded to dismiss the application pursuant to r.13.10 of the Rules.

10. I note and accept that the Court is now bound by s.17A of the Federal Magistrates Court 1999 (“the Act”) and that it is not necessary in an application of this kind for the Court to determine that the application is hopeless or bound to fail for it to have no reasonable prospect of success (see section 17A(3) of the Act).

11. That section does not effectively diminish the responsibility the Court undoubtedly has in considering summary dismissal, having regard to the well known authority of Dixon J, as he then was, in Dey v Victorian Railways Commissioner (1949) 78 CLR 91.

    “A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the Court with or without a jury.  The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious.  But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”

12. In this case, although I do not have to consider whether the case is hopeless or bound to fail, I would if necessary have no trouble making that finding.  At the very least, it is not difficult on the material before me to determine that in this case the application has no reasonable prospect of success, applying the authority to which I referred, noting the significant onus upon the Court when considering summary dismissal, but in this case I have no doubt that this could properly be described as an abuse of process, frivolous or vexatious.

13. On that basis, I am prepared to make an order sought in the notice of motion that the application be dismissed pursuant to r.13.10(b) and/or r.13.10(c) of the Rules.

14. In the notice of motion, further orders are sought which effectively require the Court to consider whether or not this Applicant could properly be described as a vexatious litigant for the purposes of r.13.11 of the Rules. In particular in this instance the First Respondent has sought an order pursuant to r.13.11(3)(b) and specifically seeks an order that this Applicant if the Court is satisfied that the Applicant is indeed a person who could properly be regarded as a vexatious litigant be ordered not to institute any proceeding against the First and Second Respondent without leave of the Court. It is accepted that added to those words should be "any proceeding in relation to the Refugee Review Tribunal decision dated 18 February 2000."

15. In considering the issue of vexatious litigants, in my view the Court does not necessarily have an inherent power to make orders but rather an express power provided in the Rules. That express power requires the Court to be satisfied that a person has instituted a vexatious proceeding and the Court then is satisfied the person has habitually, persistently and without reasonable grounds, instituted other vexatious proceedings in the Court or any other Australian Court, whether against the same person or against a different person.

16. In this instance, the chronology of events referred to in the affidavit of Ms O'Regan satisfies me that at the very least it could properly be determined that in this case the application is vexatious and further that this Applicant has at least on one other occasion that is the application for special leave filed in the High Court of Australia on 8 December 2004 also filed what would appear on the face of it to have been what I regard to be another vexatious proceeding filed without reasonable grounds.  The history overall satisfies me that this person could be properly described as a person who is a vexatious litigant who has habitually and persistently and without reasonable ground instituted vexatious proceedings in this Court, and in the circumstances I am satisfied on that basis that it is appropriate to make the orders sought.

17. In making those orders I should indicate that during the course of the hearing an application was made for an order for indemnity costs. In my view, in applications of this kind where the Court has made the findings it has in relation to summary dismissal and made orders in relation to this Applicant which have been made following a conclusion of this Court that the Applicant is vexatious, it is appropriate that an order be made for indemnity costs; hence the amount of costs in this instance are based upon indemnity rather than party-party basis found in schedule 1 of the Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of McInnis FM

Deputy Associate:  Brooke Evans

Date:  1 March 2006