NAXE v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1373

FEDERAL COURT OF AUSTRALIA

NAXE v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1373

Federal Court Rules Order 82 r 7

NAXE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 1708 OF 2003

HELY J
25 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1708 OF 2003

BETWEEN:	NAXE APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	25 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The motion filed by the applicant dated 18 November 2003 be dismissed.

2.        The respondent’s costs on the motion be costs in cause.

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 1708 OF 2003

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

JUDGE:	HELY J
DATE:	25 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. When this matter was last before me on 18 November 2003, I fixed the matter  for hearing on 23 February 2004.  After I did so, the applicant filed a notice of motion seeking to transfer the proceedings to the Federal Magistrates Court.  The applicant states that the case is not a complex case, and that it can be heard in the Federal Magistrates Court.  Also the applicant states that the fees in the Federal Magistrates Court are less than the fees in this Court and if he loses he does not want to leave Australia in debt. 

2. The applicant says he went to the wrong Court by mistake when he was initially filing his application.  He meant to start the proceedings in the Federal Magistrates Court.  The form of application which was lodged with this Court on 31 October 2003 does not clearly identify an available ground of review.  I have, however, read a copy of the Refugee Review Tribunal’s (‘the RRT’) decision and I agree with the applicant that this is not a complex case and it is one which could be heard in the Federal Magistrates Court.

3. Order 82 r 7 of the Federal Court Rules sets out the facts which are to be taken into account in determining whether to transfer a matter to the Federal Magistrates Court.  Two of those factors which are of particular importance in the present case are, namely, cost and convenience.  In my experience, the costs which are awarded in the Federal Magistrates Court are significantly less than the costs which are awarded in this Court and that is a factor which favours transfer.

4. However, I can hear the matter in February 2004, but the Federal Magistrates Court cannot fix a hearing until after April 2005.  That is a very significant delay which is of heightened significance given the applicant’s concession that his case is not a complex one.  It would be an effrontery to the proper administration of justice if one had to wait until April 2005 to determine a case which is not a complex one when I can dispose of it in February 2004.  I therefore decline to transfer the proceedings to the Federal Magistrates Court. 

5. The Minister opposed transfer to the Federal Magistrates Court because of the delay.  But for the delay I would have transferred the matter.  If at the end of the day the applicant loses this application and is ordered to pay costs, an issue could arise as to whether the level of costs should be limited to the costs which the Minister would have received had the matter proceeded in the Federal Magistrates Court.  It is not appropriate that I should determine that question at this stage because it may never arise, and because counsel for the Minister does not have any instructions on the question.

6. I would appreciate it if the Minister’s lawyers could ensure that if this matter comes before a judge other than myself, that the judge is alerted to what I have just said, so that if a costs order is ultimately made against the applicant, the judge making that order can decide whether some limitation of the type that I have indicated should be imposed.

7. The motion which was filed on 18 November 2003 is therefore dismissed.

8. The Minister seeks an order for the costs on the motion.  There is force in the Minister’s submission that this matter should have been raised at the last directions hearing.  But I think some allowance has to be made as to the difficulties which a person in the position of the applicant faces because of the absence of legal assistance and because of an inability to speak the English language.  In the circumstances, I think it is sufficient if I order that the costs of the motion be the Minister’s costs in the cause.  That means Mr Applicant that if you ultimately lose this case and if you are ordered to pay the Minister's costs of the proceedings, those costs will include the Minister's costs of this motion. 

9. Mr Applicant there are two things that I want to say to you and they are intended to assist you because we have an interpreter present.  The first thing that I want to say is that the application which you have filed does not disclose with sufficient particularity what the case is that you wish to make.  It is in your own interests that you should give careful consideration to that matter and that you should lodge an amended application specifying with some particularity what the case is that you wish to make.

10. The second thing that I want to say is that the matter has been fixed for hearing on 23 February 2004 and the orders which I made on the last occasion gave you until 13 February 2004 to file and serve any amended application and any evidence upon which you propose to rely.  The orders which I made on the last occasion also included an order that you file an outline of your submissions five working days prior to the hearing date.

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

Associate:

Dated:             26 November 2003

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Clayton Utz Solicitors
Date of Hearing:	25 November 2003
Date of Judgment:	25 November 2003