NAEB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 267

FEDERAL COURT OF AUSTRALIA

NAEB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 267

NAEB V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 1198 OF 2002

JACOBSON J
24 MARCH 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1198 OF 2002

BETWEEN:	NAEB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON
DATE OF ORDER:	24 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Applicant to pay the costs of today in any event.

2.Matter stood over until 31 March 2003 for hearing at 10.15 am.

3.Applicants to file and serve on the solicitor and counsel for the respondent any amended application and/or submissions on or before the close of business on 27 March 2003.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1198 OF 2002

BETWEEN:	NAEB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON
DATE:	24 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. When this matter was called on for hearing this morning, Mr Brezniak of counsel appeared for the applicant and sought an adjournment of the hearing.

2. The essential ground of the adjournment application is that Mr Brezniak has not been properly instructed to conduct the hearing this morning.  I accept, of course, what he told me from the bar table, namely that, on Friday evening, 21 March 2003, some information was faxed to his chambers but he did not see that material until the weekend.  The material did not include essential documents.  In particular, it did not include the application for review or the green book.

3. Ms Hartstein of counsel, who appeared for the respondent, opposed the adjournment on a number of grounds.  She pointed out that there was no notice of the adjournment application until this morning, even though it must have been apparent to the applicant, and indeed to the applicant's counsel over the weekend, that an adjournment would be sought.

4. Ms Hartstein also relies upon the history of these proceedings which were listed for hearing on an earlier occasion.  Ms Hartstein pointed out that, on her instructions, the applicant was present at a directions hearing when the matter was listed for hearing and she submits that he must have known that the matter was listed for hearing today. 

5. In my view, there is considerable force in what Ms Hartstein says about the applicant's knowledge of the fact that the matter was listed for hearing today and of his failure to take any steps prior to this morning to notify the respondent's legal advisers of the fact that an adjournment would be sought.

6. It seems to me that, from what I've been told this morning, there being no affidavit evidence in support of the adjournment application, the applicant has failed to take proper steps to instruct solicitors or counsel to prepare this matter for hearing today.

7. Ms Hartstein also submitted that, on the material contained in the green book and in the grounds for review and submissions filed by the applicant, there are no real prospects of success in the application. 

8. I do not think it is appropriate for me today to make any observations about the prospects of success.  That is a matter on which I do not propose to express any view until after I have heard from the applicant's counsel when he has been fully briefed to argue the matter.

9. I make no comment on the prospects of success of the preliminary matters which counsel for the applicant raised with me this morning when endeavouring to deal with Ms Hartstein's criticism of the circumstances in which this application has been made.

10. In my opinion, the applicant has already had a sufficient opportunity to prepare the matter for hearing but, in fairness to him, I think that he should be given a short opportunity to enable his solicitors and counsel to prepare the matter for hearing next week.

11. I propose to adjourn the matter until 31 March 2003 at 10.15 am for hearing before me.  I note that that is a date which is convenient to counsel for both parties.

12. Mr Brezniak put to me that I ought not to list the matter for hearing on 31 March because the applicant requires more time to prepare for the hearing.  Mr Brezniak says that the applicant is unable to speak any English and that there will be difficulties in obtaining an interpreter in the week which I have allowed for preparation for the hearing.  This submission was put as no more than an assertion and I am not satisfied that if proper efforts are made an interpreter could not be obtained in that time.  In any event, the issues which arise are matters which will require, for the most part, the attention of the solicitors and counsel for the applicant.  They will be able to prepare the matter for hearing upon the basis of the documentation contained in the green book and, if necessary, by reference to any other documents such as the transcript of the hearing before the Refugee Review Tribunal.  No input from the applicant should be required with respect to those matters.

13. The applicant's solicitor has not filed an appearance.  Nevertheless, I note that Mr Brezniak informs me that the solicitor has undertaken to file an appearance in the Court.  Mr Brezniak provided the name of the solicitor and I accept the undertaking which I am told has been given by that solicitor to file an appearance.  The appearance is to be filed within 48 hours.  It is plain that the applicant must pay the costs of today, in any event.  That is to say, regardless of the outcome of the final hearing next week.

14. Accordingly, I adjourn the matter for hearing to Monday, 31 March 2003 and I order the applicant to pay the respondent's costs of today in any event.

15. I will direct that any amended application and any written submissions by the applicant be filed and served on the solicitors and counsel for the respondent by close of business on Thursday, 27 March 2003.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:            27 March 2003

Counsel for the Applicant:	Mr D Brezniak
Solicitor for the Applicant:	Michaela Byers
Counsel for the Respondent:	Ms V Harstein
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	24 March 2003
Date of Judgment:	24 March 2003