Nellas v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 528

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Nellas v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 528

File number:	ADG 16 of 2022
Judgment of:	JUDGE YOUNG
Date of judgment:	6 June 2023
Catchwords:	MIGRATION LAW - application for leave to rely on an affidavit – where the affidavit has not been filed in compliance with the court rules – where the affidavit was filed late – where the applicant needs to rely on the affidavit – where not all of the material in the affidavit was unknown to the respondent – where leave is granted for the applicant to rely on the affidavit subject to requirements.
Division:	Division 2 General Federal Law
Number of paragraphs:	4
Date of hearing:	7 June 2023
Place:	Darwin
Counsel for the Applicants:	Mr Young
Solicitor for the Applicants:	Gabito Lawyers
Counsel for the Respondent:	Ms Ellis
Solicitor for the Respondent:	Sparke Helmore

ORDERS

ADG 16 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DENNIS OROPESA NELLAS

First Applicant

DARLYN TEJADA NELLAS

Second Applicant

ALEJANDRI YSMAEL TEJADA NELLAS (and another named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	7 JUNE 2023

THE COURT ORDERS THAT:

1.That the hearing today be vacated.

2.The Applicant has leave to rely on his late filed Affidavit but is to refile it within 14 days including all annexures and ensuring all pages are paginated.

3.These proceedings be referred back to the National Migration Team for relisting on a date and time to be advised to the parties.

4.Costs of today be reserved.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

Judge Young

1. This is an application for leave to rely on an affidavit lodged and filed on Monday, though it appears that it was the subject of email correspondence on Friday.  The document is unpaginated, which is not in compliance with the rules of Court. The document appears to be in the order of 100 pages or more.  Much of the material is not new, in the sense that it is material such as the PAM3 guidelines, advice pack to the Commonwealth Medical Officer, correspondence, and a transcript of the hearing in the AAT, so it is not material that is completely unknown to the respondent. Much of the material is also referred to in the submissions filed by the applicant and/or the amended application.

2. The applicant, I think, does need to rely on that material.  I suppose it could have been handled in different ways.  The material could have been tendered by agreement had there been, for example, earlier notice to the respondent and so on, they being mostly Commonwealth documents.  The transcript, I think, is somewhat new, though the allegation arising out of the transcript is new. I certainly acknowledge that the respondent, bearing in mind that the applicant says that a passage in the transcript is indicative of prejudgment or a misdirection as to law or something that goes to jurisdictional error, is entitled to consider that carefully. While I accept that much of the material has been referred to or would be known to the respondent in one way or another, not all of it is simply an official document that the respondent would have known about and I give the example of the transcript.

3. Ordinarily, such documents probably do not constitute great prejudice to another party, but in this case, what has happened is highly undesirable.  The failure to comply with the order for filing of any additional evidence on which the applicant seeks to rely, which was made on 29 April 2022, so more than a year ago, provided that any additional evidence was to be filed no later than 28 days before the hearing.  There is non-compliance with that order and the non-compliance is unexplained.  The other issue about this affidavit is that it is in a form that is unacceptable.  It is missing significant annexures that are referred to in the affidavit and which Mr Young seeks to rely on, though it appears that they may be included in another form of the document.  I say another form because on Friday, apparently, there was an attempt to send this document to my chambers in multiple emails and after much mucking about by the Registry staff in Adelaide, the documents were reduced to a single document by the Registry staff, not the solicitor.  Ms Ellis has told me today from the bar table that her version is not complete and indeed it is incomplete in the same way that the paper version I have is incomplete.

4. I do not think it is my job to try and get to the bottom of what has happened, whether or not a complete version was available to Ms Ellis and when, because the treatment of this affidavit, the non-compliance with orders, the non-compliance with rules in regard to pagination and the incomplete affidavit reflects a very poor professional standard on whoever was responsible for dealing with it.  I do not propose to force Ms Ellis, in those circumstances, to deal with this late-filed document.  I will give leave to rely on the document subject to the present version being uplifted and refiled as a single document in its entirety after pagination.  So leave is granted subject to those conditions.  Those conditions cannot be satisfied today.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       7 June 2023

SCHEDULE OF PARTIES

ADG 16 of 2022
Applicants
Fourth Applicant:	DENISE LHYN TEJADA NELLAS