MZZDN v Minister for Immigration & Anor
[2015] FCCA 69
•27 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZDN v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 69 |
| Catchwords: MIGRATION – Application in a case seeking to set aside notice of discontinuance filed in January 2013 – applicant suffering from illness – whether Court has power to set aside notice of discontinuance validly filed – consideration of Federal Court authority including SZFOZ v Minister for Immigration and Citizenship – Court not having power to set aside – in event Court did have such power, discretionary questions unfavourable to Applicant – application in a case dismissed. |
| Legislation: Migration Act 1958, s.36(2)(aa) |
| SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 Khadri v Minister for Immigration and Borger Protection and Migration Review Tribunal [2014] FCA 91 MZZIO v Minister for Immigration and Anor [2014] FCCA 618 |
| Applicant: | MZZDN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | PETER TYLER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1540 of 2012 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 21 November 2014 |
| Date of Last Submission: | 12 December 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 27 January 2015 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr Hornsby |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The applicant’s Application in a Case filed 30 October 2014, seeking to reinstate his case following the filing of his notice of discontinuance on 30 January 2013, be dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLG 1540 of 2012
| MZZDN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| PETER TYLER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introductory
The applicant filed an application in a case on 30 October 2014. It seeks to reinstate his earlier application filed on 3 December 2012 in which the applicant had sought judicial review of a decision of an Independent Merits Reviewer dated 5 May 2012, which application was the subject of a Notice of Discontinuance filed by the applicant on 30 January 2013.
The first respondent submits that a notice of discontinuance validly filed may only be set aside on narrow grounds, essentially to prevent injustice and only in exceptional circumstances such as fraud or abuse of process. The Minister further submits that the applicant’s alleged medical condition of depression and anxiety does not constitute exceptional circumstances. Additionally the first respondent submits that the substantive application disclosed no reasonable prospects of success in any event.
For the reasons that follow I think that the first respondent’s submissions are correct and it follows that the application will be dismissed.
The history of the matter and the materials filed
The original application filed on 3 December 2012, to which I have already referred, was filed almost seven months after the Reviewer’s decision. The grounds of application are listed as:
“1. The decision of the Tribunal:
(a) is affected by an error of law.
(b) takes into account irrelevant considerations.”
The applicant’s affidavit filed contemporaneously with the application simply appends a copy of the decision of the Reviewer, to which I will return.
The response of the first respondent filed on 13 December 2012 asserts that:
“1 The application for judicial review does not provide any particulars or any legal ground of review.
2 The application should be dismissed in the exercise of the Court’s discretion because of the applicant’s unexplained and unwarrantable delay in bringing the application.”
As earlier indicated the applicant filed his notice of discontinuance on 30 January 2013. Although the document was apparently prepared by the Asylum Seeker Resource Centre, there is no apparent dispute that the applicant signed it. Indeed the signature on the notice of discontinuance would appear as a matter of impression to be identical with the signature on the application in a case filed later.
That application in the case was, as earlier indicated, filed on 30 October 2014. It was accompanied by an affidavit filed on the same date. The affidavit relevantly asserts:
“I have previously withdrawn from my case and seek to reinstate the case, relying on my previous grounds. I have mental health issues which affect my memory and concentration. I was assaulted while in Immigration Detention. I sometimes have difficulty giving legal instructions.”
Since the applicant does not speak or write English that document was plainly prepared by a third party.
When the matter came before the court for directions on 21 November 2014 I granted leave to the applicant to file in court a further affidavit. It confirms that both the original application and the notice of discontinuance were “lodged for me” on behalf of the applicant. It also confirms that “the application and Notice of Discontinuance were lodged by a lawyer from the Asylum Seeker Resource Centre.”
The affidavit goes on to depose that the applicant has experienced mental health issues over the past few years, including severe memory problems and that he did not recall why he withdrew his application in January 2013. The applicant deposed to taking a combination of medications including antidepressants at that time. He deposed that he had been assaulted while in immigration detention and foreshadowed a report from a psychiatrist, Dr Alan Jager, to be provided shortly. The affidavit refers to a Court Book, which is not before the Court, it is asserted at paragraph 10, “In my IMR interview I informed the interviewer that I have memory problems. (See Court Book p. 203, para. 28).”
The applicant’s affidavit continued:
“11. In light of my mental health issues as described above, I now seek to have my matter reinstated to the Federal Circuit Court.
12. I have listened to the audio recording of my IMR Hearing and am aware of how my claim for refugee status was put forward by my representative.
13. I have had explained to me that while my case was being considered by the IMR, the law in relation to the definition of a refugee changed. As far as I can remember this was not explained to me by my Migration Agent and I was not given the opportunity to provide further relevant information to the IMR as I did not know it was possible.
Due to financial constraints I have also had difficulty in finding legal representation. I was provided with a Government funded Registered Migration Agent during my application to be recognised as a refugee, but they only did minimal work on my case and have not represented me in a competent or thorough way. My initial statement of claim is on p.56-57 of the Court Book.”
The submissions made at Court
The applicant said that he would like to say that he was an asylum seeker, as a Hazara Shia. He said there would be danger if he was to return to Afghanistan and he would give evidence of this. He referred to a document made by his father and said that if he was given time his document would then be ready. He said the document would prove that he was Hazara Shia from Afghanistan. He tendered as exhibit A1 the translation of what is described as “Head Office CENSUS” which, although given under the heading of the interior ministry in district of Jaghori (which the Court is well aware is in territory overwhelmingly populated by Hazaras), does not in terms make any assertions as to the applicant’s race or religion.
Counsel for the first respondent noted that the application in the case seeks to set aside the notice of discontinuance. He referred to authorities in relation to setting aide, namely, SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 (“SFOZ”), Khadri v Minister for Immigration and Borger Protection and Migration Review Tribunal [2014] FCA 91 (“Khadri”), and MZZIO v Minister for Immigration and Anor [2014] FCCA 618 (“MZZIO”). I will return to these authorities in due course.
Counsel submitted that the court does have power to set aside notice of discontinuance, but that this was a narrow power exercised to prevent injustice. It can only be exercised in exceptional circumstances such as fraud or abuse of process.
Counsel said the circumstances in this case were not sufficient. First, the applicant knowingly and voluntarily filed the notice of discontinuance. Second, it was clear that the applicant signed it and had the assistance of the Asylum Seeker Resource Centre. There was no evidence that he did not understand it at the time. Third, it was submitted that the applicant’s medical condition of depression and anxiety did not constitute exceptional circumstances. Reference was made to MZZIO in this regard. There were no assertions of fraud or abuse of process.
Finally, counsel submitted that there was no injustice in any event because the substantive application and grounds of review within it had no reasonable prospects of success.
The applicant in reply asserted that he has been suffering emotional and psychological problems. He said he had a weak memory and forgot things. He said that on the way to Australia he had suffered a lot. He said torture and trauma had affected his memory. He said he had depression and anxiety. He said there were no interpreters at the detention centre. He said the events were now almost four years ago and he had lost his memory. He forgets his name. He said if he was told things verbally he forgets it. He said because he forgets could he write to the court.
In the face of that request the court gave the applicant until 5 December 2014 to file any further written submissions with an opportunity to the respondent to respond. The applicant filed a further affidavit on 4 December 2014. Essentially it was a facultative affidavit to bring before the court the report of Dr Jager. The affidavit did however say:
“6. The Notice of Discontinuance dated 18 January 2013 was sent by fax to the Federal Circuit Court. I did not send this fax myself and cannot remember signing the Notice of Discontinuance.
7. I fear that if I am forced to return to Afghanistan I will be killed. I believe I have not been given a chance for my case to be properly considered according to law and that if my case is not reinstated it would have very serious consequences for me, including being deported to a country where I have not lived since the age of four; where I have no relatives, property or social connections, and where I am at risk of serious harm due to my Hazara ethnicity and Shi’a religion, as well as other reasons.”
The report of Dr Jager
Setting aside formal matters going to the doctor’s qualifications, Dr Jager’s report sets out the history of the applicant as given to him. The applicant grew up in Pakistan from age five, and his life as disclosed in the report would seem unremarkable for present purposes. On page 2 of the report under the heading “Present Complaint” Dr Jager recorded:
“(The applicant) last felt well in November 2010. The situation at home became very bad. There were bomb blasts from two organisations who were also killing Hazaras and Shias. He is Hazara. His father told him to leave because his life was at risk. He found a smuggler who arranged flights from Karachi to Malaysia and then Indonesia. He stayed in Indonesia for a month and then went by boat to Christmas Island. He we (sic) kept at Christmas Island for four months then Schirger in North Queensland then Melbourne for six months in the community from 2012.
Before leaving Pakistan he felt well as there was an urgency to leave and he felt good whilst on the flight to Indonesia. He felt good in Indonesia because he lived in a hotel. He felt “not bad” on the boat. He was on the boat for 10 nights at sea and noted a desperate situation when the boat broke down. He experienced no anxiety or depression. He felt good and hopeful on Christmas Island and at Schirger, he felt good until he was assaulted.
When he was at Schirger, a fight broke out between the two detainees and people threw rocks and chairs. He was hit in the head by a chair and was knocked out briefly. An officer collected him and he was transported to hospital. He had sustained a small cut to the lateral angle of his right eye which was sutured at hospital.
After returning to Schirger, he felt fed up, but was cared for well by officials and detainees. He has no complaints about his treatment. He felt sad after the incident and then increasingly sad after each rejection of his application for asylum. He has not been treated.
He felt better when he was released into the community, but still felt “half dead and half alive”. He has been told to prepare for departure in Afghanistan. The situation is still bad in Afghanistan and Pakistan where his family of Hazaras were sent back to Afghanistan from Australia and have been killed by the Taliban for returning from “Infidel land”.
He is anxious all of the time because of the uncertain situation, and is depressed some of the time. He has no enjoyment in life. He has difficulty getting to sleep and staying asleep. Energy during the day is good and appetite is okay. Concentration is reduced for watching movies, and he is only able to focus for an hour. He has had suicidal thoughts. He has made no suicide attempts but has had thoughts of throwing himself under a car.
Your letter of instruction advised me that (the applicant) was at risk of deportation to Afghanistan, although he had not lived there since the age of four or five. He has had sought assistance from a Brigidine Asylum Seeker Project in relation to immigration matters, as his application for recognition of his refugee status have been refused at primary and review levels. He advised that he is on a bridging visa in the community and noted that he had been assaulted when in detention sustaining an injury to his head.”
Under the heading “Mental State Examination” Dr Jager recorded:
“Emotional Tone:
He was glum and dejected.
Speech:
He spoke in fluent Hazaragi and the interview was assisted by the presence of a Hazaragi interpreter.
Thought:
His thought stream was fluent and coherent and he described no bizarre beliefs.
Perception:
No abnormal sensory perceptions.
Cognition:
He was alert and attended well for the interview.
Insight:
He realised he was unwell.”
Dr Jager went on to summarise and diagnose the applicant on page four of the report and concluded, “He has an Adjustment Disorder with Anxiety and Depressed Mood.” Under the heading “Opinion”, relevantly for these purposes, Dr Jager answered the following question:
“In relation to (the applicant’s) capacity to ability to undertake complex situations such as the Australian legal system, would you be able to provide an opinion on (the applicant’s) ability to make fully informed decisions?
I assessed him as having average intelligence and no specific cognitive deficits. Provided he has access to legal advice I consider him fit to understand the Australian legal system and provide adequate instruction to counsel.”
The next question asked was:
“In relation to the prospect of (the applicant’s) deportation to a country he has not lived in since a very young age, and where he does not have support structures such as family, friends or property, would you be able to provide an opinion as to (the applicant’s) ability to cope with such an environment?
(The applicant) has proven to be a fairly resourceful man, managing to leave Pakistan, fly to Indonesia, and find his way to Australia using the services of people smugglers. He was able to do that from his base in Pakistan where he had full family support. He is understandably frightened about being displaced to a country where he faces the risk of death at the hands of terrorists. His ability to cope in such an environment will be impeded by his existing Adjustment Disorder with Anxiety and Depressed Mood which feasibly would deteriorate to the point of becoming a Major Depressive Disorder with Anxiety. If he did develop such condition, it would impede his ability to alert to possible dangers.”
The decision of the Reviewer
The decision of the Reviewer notes the negative assessment made by a delegate on 28 February 2011 (paragraph 1) and the application ultimately made for a merits review hearing. The Reviewer set out the relevant law, including the complementary protection provision, in terms that seem to me unobjectionable.
At paragraphs 17-18 the Reviewer traversed the evidence given by the applicant at his entry interview and in his statutory declaration dated 15 January 2011. The applicant asserted at his entry interview relevantly that he was born in 1987 in Sangha Marsha, Jaghori, Ghazni in Afghanistan and moved to Quetta in 1992 where he lived until 2007, after which he lived in Tehran until 2008. He returned to Pakistan until he left for Australia in 2010. He was a Hazara Shia. He claimed to leave Pakistan because insurgent groups were killing Hazara/Shias and deposed to threats from Pashtuns over a period of years. In his entry interview he had also asserted that in the four years prior to travelling to Australia he was not harmed by anyone, however he did receive threats. He was deported from Iran because he did not have the necessary documents. He had not remained in Afghanistan after deportation from Iran because his family was not there.
The statutory declaration was, in general terms, consistent with the entry interview, but I note that whereas in his entry interview he had referred to a suicide bomb exploding in a mosque from which he was at that time five minutes away, the statutory declaration suggested that in September 2010, while the applicant was actually praying in the mosque, a bomb was detonated by a suicide bomber.
At paragraph 19 the Reviewer paraphrased a pre-interview submission. This did not add much in terms of factual assertions but did raise some new considerations as to the difficulties the applicant would face if returned to Afghanistan.
At paragraphs 20-38 the Reviewer traversed the matters said at the merits review interview. The interview was conducted with the assistance of an interpreter in Hazaragi language. I note that the Reviewer traversed in terms with the applicant an assertion made by the Reviewer that the area that the applicant was from was totally inhabited by Hazaras and was therefore safe. The Reviewer also put it to the applicant that migration between Afghanistan and Pakistan involves hundreds of thousands of Hazaras and that the applicant responded that the Hazaras are in the minority and are killed wherever they go. The Reviewer also traversed with the applicant the possibility of relocation to Kabul. The applicant responded that he would not be able to get work in Jaghori and would need to go out of the area in order to provide for the family.
I note further that the Reviewer traversed with the applicant the possibility of his returning to Sangha Marsha where his family originally came from and where there was a Hazara community which would help its own people. The applicant said that the community would not help him because he had been away for such a long time and that, in any event, the return to Afghanistan might kill his father.
The representative expressed the view it would assist if a medical report could be provided and the Reviewer undertook to take note of any such report.
The Reviewer also noted at paragraph 38 the oral submissions made by the representative.
At paragraphs 39-40, the Reviewer dealt with the medical records of the applicant provided by the applicant’s representative. At paragraph 40 the Reviewer noted:
“It appears that there has also been some attention paid to the claimant’s psychological state but no diagnosis appears to have been made and the (sic) only be appears to be a low level of concern for him in this regard.”
The Reviewer caused an email to be sent to the applicant’s representative seeking comments in relation to country information which relevantly included information that Jaghori was currently safe for Hazaras, also violence against Hazaras was unlikely, it was unlikely that Hazaras would be targeted because they have sought asylum in the west and it is relatively easy for Hazaras to integrate into Kabul.
The applicant’s representative provided a response which is summarised at paragraph 42 of the decision and the Reviewer’s findings and reasons are at paragraphs 45-69.
The Reviewer accepted that the applicant was a Hazara and a Shia Muslim. In paragraph 48 the Reviewer said:
“48. Having considered the material currently available concerning Afghanistan, along with the general country information provided by the claimant’s representative, I am not satisfied that there is independent corroboration of claims that the Taliban specifically targets Hazara Shias on a systematic and discriminatory basis. The evidence does suggest that individual Hazaras have been targeted either individually for other reasons or as part of the general insurgency and its attacks on government and other facilities.”
Having referred to country information the Reviewer went on to find that the applicant did not face a chance of persecution as a Hazara and a Shia of itself.
The Reviewer went on to consider the applicant’s “particular experiences and claims” (paragraph 57).
The Reviewer accepted the applicant was born in Sangha Marsha Jaghori and lived there until his family fled to Pakistan when he was about five years of age. Since then, the Reviewer accepted, the applicant had apart from his two years in Iran lived in Quetta.
The Reviewer did not accept that the applicant would return to Sangha Marsha where he was born if he was returned to Afghanistan as he has not lived there since he was five years old. The Reviewer went on accordingly to consider whether the applicant would settle in a major city in Afghanistan such as Kabul.
The Reviewer noted the very substantial number of Hazaras in Kabul and noted that there was a cohesive Hazara community there and the advice of DFAT that it would be relatively easy for new arrivals to integrate into the city.
The Reviewer rejected the applicant’s assertion that he would stand out because of his accent because of the large number of people returning to Afghanistan from both Pakistan and Iran. The Reviewer went on to conclude that on the basis of DFAT’s advice the applicant would not face harm as a returned asylum seeker.
The Reviewer rejected an assertion made towards the end of the interview that the applicant would face persecution as a spy, noting that this matter had not been raised in any way before. The Reviewer found that the claim was a throwaway line at the closing stages of the interview and that there was no substance to it.
The Reviewer went on to conclude that the applicant was not a person in respect of whom Australia had Refugee Convention obligations and, further, that he did not meet the complementary protection criterion in s.36(2)(aa) of the Migration Act 1958.
The authorities in relation to notices of discontinuance.
In SZFOZ, Ryan J was concerned with an application seeking to appeal orders made by the Federal Magistrates Court in circumstances where the applicant had filed a notice of discontinuance in his proceeding in that court. At [15] Ryan J said:
“The learned Federal Magistrate appears to have regarded the question of whether to set aside the discontinuance as involving an exercise of discretion. As a result, his Honour adverted to considerations, to some of which I have already referred, including the appellant’s prospects of success on the application for review if it were reinstated, the reasons for the discontinuance and whether it occasioned an injustice to the appellant. However, in my view, the orders of the learned Federal Magistrate can be supported on the narrow ground of an absence of power to set aside the discontinuance which has been regularly effected. Rule 13.01 of the Federal Magistrates Court Rules provides a mechanism for discontinuance by stipulating;
‘A party may discontinue an application or response by filing a notice of discontinuance in accordance with the notice set out in Part 1 of Schedule 2.’”
His Honour continued at [17] and following:
“There is nothing in the relevant provisions of the Federal Magistrate Court Rules which empowers the Court to set aside a notice of discontinuance to reinstate proceedings which have been regularly discontinued in accordance with Rule 13.01. That accords with the traditional understanding of the effect of discontinuance which has been exemplified by Neill LJ in ROFA Sport Management AG v VHL International UK Ltd [1989] 2 All ER 743, where his Lordship said, at 747;
‘It was also not in dispute that if the action had been discontinued by an order made under Ord21 r3 and the order had been drawn up the action would have been at an end and no order could be made thereafter under Ord 15 r 6(2). Order 21, though with amendments, can be traced through Order 20 of the Rules of 1962 to Order 26 of the Rules of 1883. It provides a complete code relating to the discontinuance of an action. It also deals with cases where a party wishes to withdraw part of a claim or counterclaim. In the present case however the order did not provide for discontinuance under Ord 21, r 3 and the application for the rectification of the order 14 August 1985 has been dismissed.’
Rarely, the discontinuance may involve an abuse of process. In those cases, the Court may accede to a request by a party affected by the abuse to have its discontinuance set aside; see eg Castanho v Brown & Root (UK) Ltd [1981] AC 557 where Lord Scarman, with whom the rest of their Lordships agreed, said at 571;
‘The first issue is whether the notice of discontinuance can be struck out, and, if it can, whether it should be. It is accepted that under the Rules of the Supreme Court as they were in 1979 (for they have now been amended to take care of the situation which arises where interim payments have been made: see RSC (Amendment No. 2) 1980, r.4), the plaintiff, notwithstanding the two interim payments and the admission of liability, could discontinue without leave, if he did so not later than 14 days after the service of defence. Lord Denning M.R. was, however, prepared to hold that our courts can, by the device of statutory interpretation, repair the omission in the unamended R.S.C., Ord. 21, r. 2 to provide for the case in which interim payments had been ordered and made by the expire of the time limit. “I fear”, he said, “that the draftsman of interim payments forgot all about notices of discontinuance. Interim payments are quite inconsistent with a right to discontinue without leave”; [1980 1 W.L.R. 833, 854H. Interim payments were made possible by the Administration of Justice Act 1969, section 20, and introduced into the law in 1970 by R.S.C., Ord. 29, rr. 12-17. Like Lord Denning M.R., I have no doubt that the failure to amend the rule relating to notice of discontinuance was a casus omissus. But I do not agree that it is an omission which the courts can make good by reading into the rule a provision that leave is needed when the rules expressly said it was not. Unless, therefore, it is possible to treat a notice of discontinuance without leave which complies with the Rules of the Supreme Court as an abuse of process, (which is what Parker J. did), the notice cannot be struck out.
In the Court of Appeal, Lord Denning M.R. was prepared so to hold (p.855). Brandon L.J. expressed no opinion. Shaw L.J., however, held that it was not possible. It seemed to him “an inversion of logic to speak of an act which purports to terminate a process as being an abuse of that process.” (p.864D). I am not sensitive to the logical difficulty. Even if it be illogical (and I do not think it is) to treat the termination of legal process as an act which can be an abuse of that process, principle requires that the illogicality be overridden, if justice requires. The court has inherent power to prevent a party from obtaining by the use of its process a collateral advantage which would be unjust for him to retain; and termination of process can, like any other step in the process, be so used. I agree, therefore, with Parker J. and Lord Denning M.R. that service of a notice of discontinuance without leave, though it complies with the rules, can be an abuse of the process of the court.’”
At [20] Ryan J continued relevantly:
“…it cannot lie in the mouth of a party like the present applicant who knowingly and voluntarily filed a notice of discontinuance, to assert that his own act should be set aside as an abuse of process. Courts also probably have an inherent power to set aside a discontinuance which has been procured by fraud or duress but that power, likewise, is not available to be invoked in the present case.”
Ryan J went on to find that the Federal Magistrates’ Court had had no power in the given circumstances to set aside the notice of discontinuance and dismissed the appeal.
In Khadri, Ross J relevantly said at [16]:
“16. In my view, it was plainly open to his Honour to dismiss the application in the exercise of his discretion and he made no error in doing so. The Applicant had knowingly and voluntarily filed a Notice of Discontinuance of the judicial review proceedings. There was no evidence that the Notice of Discontinuance had been procured by fraud or duress or that it was done without the Applicant’s knowledge of consent. In such circumstances, it was undoubtedly the correct course to reject the application to set aside the Notice of Discontinuance…”
In MZZIO, Judge Whelan accepted that a notice of discontinuance may only be set aside in exceptional circumstances (at [13]).
I note that her Honour was concerned in that case as to whether or not the applicant was aware of what he was doing when he discontinued the proceeding. Her Honour found that there was no medical evidence of the applicant’s state of mind at the time and her Honour found at [18]:
“The Applicant’s material suggests that the decision was made because the Applicant was suffering anxiety and depression and in severe financial difficulty. While these factors may have influenced the Applicant’s decision, they do not suggest some grave injustice would occur if having re-assessed his situation, he was not permitted to reinstate the application.”
Consideration
I am of course bound by the decisions of the Federal Court in SZFOZ and Khadri. From these authorities it is plain that this court only has power to set aside a validly filed notice of discontinuance in exceptional circumstances such as fraud or duress. Clearly those are not present here.
According to the applicant’s own affidavit, the notice of discontinuance, like his original application, was filed for him by the Asylum Seeker Resource Centre. There is no reason to presuppose that those actions were not taken on proper instructions.
I note that while the applicant is clearly unwell, however “provided he has access to legal advice I consider him fit to understand the Australian legal system and to provide adequate instruction to counsel”, (per Dr Jager).
Given that opinion, albeit that it is somewhat later obviously than the filing of the notice of discontinuance, the clear conclusion I would arrive at is that although the applicant says he cannot remember signing the notice of discontinuance, he clearly did and I am not able to find on the evidence before me that he was not aware of what he was doing.
In these circumstances, and on what Ryan J referred to as the narrower ground in SZFOZ, it is clear that I have no power to set aside the notice of discontinuance.
If, however, I was wrong in that regard, I would not regard it as appropriate to set aside the matters of discontinuance on discretionary grounds. There was very substantial delay between the original decision of the Reviewer and the application to this court. There has been further substantial delay between the notice of discontinuance and the application to set it aside.
Furthermore, the decision of the Reviewer, admittedly looked at in the absence of what appears to have been a Court Book, does not on its face identify any error in the Reviewer’s decision such as to suggest that the application, wholly unparticularised as it originally was and remains, would enjoy any significant prospects of success.
Conclusion
For the reasons given I reject the application to set aside the notice of discontinuance and the application in a case will be dismissed with costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 27 January 2015
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