NATE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)

[2003] FCA 1312

FEDERAL COURT OF AUSTRALIA

NATE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2003] FCA 1312

NATE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 815 OF 2003

LINDGREN J
11 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 815 OF 2003

BETWEEN:	NATE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	11 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The motion brought by notice of motion filed on 30 October 2003 be dismissed.

2.        The applicant pay the respondent’s costs of the motion.

3.        Orders 1 and 2 not be entered until 4.00 pm tomorrow afternoon, 12 November 2003.

4.The applicant have liberty to apply until 4.00 pm tomorrow on one hour’s notice.

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	N 815 OF 2003

BETWEEN:	NATE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	11 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT (No 2)

1. On 18 September 2003 I ordered that:

   1.        The application be dismissed.

   2.        The applicant pay the respondent’ costs.

   3.        The respondent not enter orders 1 and 2 until Tuesday 21 October 2003.

2. The respondent (“the Minister”) apparently filed the form of order for the purpose of entry of it on 21 October 2003 as the Minister was entitled to do in accordance with order 3.  However, the order was not immediately entered, and, in fact, it came to be entered at about 5.00 pm on Wednesday 29 October 2003 in circumstances to which I will refer below. 

3. There is before the Court a motion brought by the applicant by notice of motion filed on 30 October 2003 seeking, in substance, a vacation of the orders of 18 September 2003, leave to file and serve an amended application, and a timetable for the purpose of the hearing.

4. The purpose of order 3 made on 18 September 2003 was to give the applicant the benefit of subr 7(1) of O 35 of the Federal Court Rules which provides that the Court may vary or set aside a judgment or order before it has been entered.  As is well known, the Court’s power to vary or set aside a judgment or order after it has been entered, given by subr 7(2) of O 35, is more limited. 

5. There is an affidavit supporting the motion sworn by Margaret Scanlan, solicitor, who is employed by John Bettens & Co, the solicitors for the applicant.  I will set out all 24 paragraphs of that affidavit as follows:

‘1.I received written instructions from [the applicant] at approximately 4.20 p.m. 17 September 2003.

2.At approximately 4.40 p.m. I received some papers in relation to the matter.

3.After perusal of those papers I telephoned the barrister, who it was apparent from the papers, had had some control over the matter at some point.

4.Bruce Levet of counsel (“counsel”) advised me that he had not had any input into the matter for about six weeks.  After a brief discussion, counsel advised me that the best course of action would be for me to apply to adjourn the matter on the basis that there was an arguable point and the client should have the opportunity to argue that point in Court.

5.Counsel advised me that he would accept a brief to appear, however he was out of Sydney and could not appear 18 September 2003.

6.Not knowing the history of the matter, and not having any meaningful papers in my possession, I formed the view that I was not equipped to run the hearing without counsel.

7.On 18 September 2003 orders were made by Lindgren J to the effect that the client had four weeks to file and serve a notice of motion and affidavit in support that would move the Court to vacate the orders made.

8.On 23 September 2003 I had a conference with counsel to advise him of the developments to date and to discuss the contents of the prospective notice of motion and affidavit.  Because of the conversations I had with counsel I believed that counsel was going to draft the relevant documents.

9.On 10 October 2003 I met counsel by arrangement at the corner of Market and Elizabeth Streets and handed to him the following documents:

a.        Transcript of Tribunal proceedings.
b.        Orders dated 17 July 2003.
c.        Judgment dated 18 September 2003.
d.        Copy of Green Book.

Counsel informed me that he would attend to this and another matter I had given him, on the weekend.

10.On 14 October 2003 I telephoned counsel and he informed me that he had looked into the other matter I had given him, however he had not started this matter.  I reminded him that the required documents were due to be filed 21 October 2003 and asked him if he needed any help from me.  Counsel declined my assistance and said he would “get onto it” straight away.

11.On 16 October 2003 I telephoned counsel and reminded him that the documents were due 21 October 2003.  Counsel assured me he would “do it” over the weekend.

12.On 20 October 2003 I telephoned counsel and asked him if the documents were ready?  To the best of my recollection counsel said to me words to the following explicit effect:

“I am on my way to Court, I will telephone you at morning tea.”

I said:
“Okay, but we have to file the documents tomorrow, that is the 21^st.”

He said:
“If we file the documents.”

I said:
“What do you mean if?  That is the only reason I went to Court.  On the basis that you said we had an arguable point.”

He said:
“I will call you later.”

13.I telephoned counsel on his mobile telephone at morning tea-time on 20 October 2003 and left him a message to call me urgently.

14.I telephoned counsel on his mobile telephone at lunch-time on 20 October 2003 and left a message for him to call me urgently.

15.I telephoned counsel on his mobile telephone at approximately 4.30 p.m. on20 October 2003 and left a message for him to call me urgently.

16.      Counsel has not returned my calls.

17.On 26 October 2003 at approximately 10.50 a.m. I telephoned the solicitor for the Respondent and asked them if they would consent to the filing of a notice of motion out of time.  The solicitor for the Respondent informed me that she would not consent to anything other than the orders being entered.

18.At approximately 3.19 p.m. I telephoned the Federal Court Registry to inquire as to whether the orders had been entered and the clerk informed me that they had not.

19.On 28 October 2003 I arranged a conference with Shayne Prince of counsel at 10.00 a.m. on 29 October 2003 to obtain his advice on the matter.

20.At approximately 2.20 p.m. I telephoned the Federal Court Registry and inquired as to whether the orders had been entered, and the clerk informed me that they had not.  I asked the clerk if I could talk to the person responsible for entering the orders and the clerk transferred me to the learned Registrar.

21.I made a request to the learned Registrar to refrain from entering the orders until Friday 3  October 2003.  The learned Registrar requested that I send him a fax to that effect.  I sent him a fax immediately.

22.After discussing the matter with Mr Prince of counsel he advised me to draft a notice of motion to move the Court to vacate the orders made 18 September 2003.

23.On 29 October 2003 at approximately 4.05 p.m. I received a telephone call from the learned Registrar requesting me to file a notice of motion immediately and an affidavit in support as soon as possible thereafter.

24.I filed a notice of motion at 9.00 a.m. 30 October 2003 at the Federal Court.’

1. At present there is no affidavit evidence before the Court from the Court staff to whom Ms Scanlan spoke.  However, I have informed the parties this afternoon on the hearing of the motion that I have spoken to the Deputy Registrar concerned who states that the conversation to which par 23 of the affidavit is intended to refer in fact took place at about 1.30 pm or 2.00 pm.  I have informed the parties that, if necessary, the Deputy Registrar will provide, at my request, an affidavit giving his version of events, and that he will be available to be questioned by both parties.  I am informed that his affidavit will say that he had a conversation with Ms Scanlan at about 1.30 pm or 2.00 pm in which he said that he had spoken to Ms Houlton of Sparke Helmore who indicated that the Minister would not agree to any further extension of time, and that the Deputy Registrar informed Ms Scanlan that any notice of motion would have to be filed by close of business (or 4.00 pm) that same day, 29 October, failing which the orders made on 18 September would be entered forthwith. I am informed that he will say that he checked the position at about 5.00 pm, and, no notice of motion having been filed, he caused the orders of 18 September to be entered immediately.

2. As indicated earlier, the notice of motion was filed the following day, 30 October, (according to par 24 of Ms Scanlan’s affidavit, at about 9.00 am).

3. There are two difficulties with the present motion, quite apart from the fact that the notice of motion was not filed in time.  The first is that there is no evidence before me to the effect that the applicant has an arguable point which he wishes to raise.  In par [15] of my reasons for judgment of 18 September I indicated that any motion to have the order of dismissal set aside would need to be supported by an affidavit explaining why the argument could not have been, or was not, put, at the hearing on 18 September, and demonstrating that it has some prospects of success.  Mr Bettens, solicitor, who appears for the applicant on the hearing of the motion this afternoon, says the he is not in a position, even still, to identify any jurisdictional error in the reasons for decision on the Tribunal.

4. The second point of difficulty is that it is not obvious what power the Court has to set aside the order of dismissal now that it has been entered.  It is common ground that none of the paragraphs in subr 7(2) of O 35 is available.  Mr Bettens suggests that subr 7(4) may provide the necessary power.  It provides that subr 7(2) does not affect the power of the Court to:

   “Vary or terminate the operation of an order by a supplementary order.’

   But what is required here is a setting aside of the order of dismissal, not an order terminating the operation of the order of dismissal.  It is submitted that under subr 7(4) I could order  that the time allowed in order 3 of 18 September for the non-entering of the order be varied by being extended.  The problem with this is that it would place the Deputy Registrar, who acted entirely properly at the time, in breach of a Court order.

5. On the ground that no jurisdictional error is pointed to, I will dismiss the present motion but, with some doubt, direct that the order of dismissal not be entered until 4.00 pm tomorrow afternoon and reserve liberty to the applicant to apply until that time on one hour’s notice.  It would seem desirable that those advising the applicant look carefully at the reasons for decision of the Tribunal and determine whether it is appropriate to take advantage of that liberty to apply.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:  17 November 2003

Solicitor for the Applicant:	Mr J Bettens of John Bettens & Co
Solicitor for the Respondent:	Ms A Houlton of Sparke Helmore
Date of Hearing:	11 November 2003
Date of Judgment:	11 November 2003