O'Donoghue v Administrative Appeals Tribunal
[2012] FMCA 1191
•4 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| O’DONOGHUE v ADMINISTRATIVE APPEALS TRIBUNAL & ORS | [2012] FMCA 1191 |
| ADMINISTRATIVE LAW – Application to review order of AAT to refuse adjournment of applicant’s application and to list it for trial – no particulars in grounds promoted and minimal affidavit material – application to adjourn the application to this Court – refusal of adjournment and dismissal of application. |
| Administrative Decisions (Judicial Review) Act 1977, s.6 Federal Magistrates Court Rules 2001, rr.4.05, 42.01 & 42.02 |
| Achen Daw v Minister for Immigration and Citizenship and Administrative Appeals Tribunal [2012] AATA 70 |
| Applicant: | VINCENT THOMAS O’DONOGHUE |
| First Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| Third Respondent: | HON CHRIS BOWEN MP, MINISTER FOR IMMIGRATION |
| File Number: | PEG 217 of 2012 |
| Judgment of: | Lindsay FM |
| Hearing date: | 4 December 2012 |
| Date of Last Submission: | 4 December 2012 |
| Delivered at: | Perth |
| Delivered on: | 4 December 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Third Respondent: | Mr A. Gerrard |
| Solicitors for the Third Respondent: | Australian Government Solicitor |
ORDERS
That the application by the Applicant for an adjournment of this hearing is refused.
That the application by the Applicant for copy documents to be provided to him is refused.
That the application by the Applicant for a stay of the proceedings in the Administrative Appeals Tribunal is refused.
That the oral application by the Applicant for this Court to state a case to the High Court is refused.
That the application filed on 14 September 2012 is dismissed.
That the Applicant pay the Third Respondent’s costs of and incidental to the proceedings, such sum to be agreed within 28 days, failing which the costs are to be taxed by a Registrar of the Court in accordance with Schedule 1 to the Rules of this Court.
Direct that a transcript of today’s proceedings be obtained and forwarded to the Applicant and the legal representatives of the Third Respondent.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 217 of 2012
| VINCENT THOMAS O’DONOGHUE |
Applicant
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
And
| HON CHRIS BOWEN MP, MINISTER FOR IMMIGRATION |
Third Respondent
REASONS FOR JUDGMENT
Before me today is an application filed on 14 September 2012. It is headed “Application for an Order of Review”. There are four applications:
(1) To review the decision of the Administrative Appeals Tribunal that the hearing of appeal number 3732 and appeal number 4007 both of 2010 be listed for hearing on 17 December 2012 and not adjourned;
(2) To review the conduct of all three respondents by which they have failed, refused and neglected to furnish copy documents and all transcripts as requested;
(3) To review the conduct of all three respondents by which the respondents propose to conduct the appeals contrary to law;
(4) To review the failure of the first respondent, the Administrative Appeals Tribunal, to decide that an adjournment will not be granted in due and full consideration of all of the circumstances of the case.
The grounds given in the application are:
(1) The lack of procedural fairness;
(2) The lack of natural justice;
(3) The presence perceived and actual bias;
(4) The lack of good faith.
Then orders are sought restraining the Administrative Appeals Tribunal (“AAT”) from conducting the appeals; directing that copy documents be furnished to the applicant; and that all transcripts be furnished to him.
The application was supported by a very brief affidavit which has five numbered paragraphs; the first of which deals with his incarceration since 3 April 2009 on extradition matters; the second telling us that he has a number of other matters before the Courts and that these have been explained to the AAT; the third is that he has sought an adjournment of proceedings listed before the AAT for Wednesday, 29 February 2012; fourthly, that he does not have time or facilities to adequately prepare; and finally, that he has not been furnished with copy documents as requested.
Lucev FM made some procedural orders on 8 October 2012 that the applicant file and serve an amended application and any affidavits in support of the application by 29 October 2012, with the respondents given the opportunity to file and serve responsive affidavits by 19 November 2012, and listing the matter for hearing before me today. On 22 October 2012 he published reasons in respect of what might be described as an informal approach to the Court by the applicant for certain orders, and on 22 October 2012 he dismissed the application for a copy of the transcript of the hearing before him on 8 October 2012 and made an order that there be no order as to costs.
The application, although it does not say so in its terms, can only be taken to be an application pursuant to s.6 of the Administrative Decisions (Judicial Review) Act 1977 “AD(JR) Act”, and subsection (1) gives a person in the position of the applicant an opportunity to apply for review of conduct relating to the making of decisions. He can apply to the Federal Court or to this Court, and a number of grounds are specified.
The applications to this Court are then governed by Part 42 of Chapter 6 of the Rules of Court. Rule 42.01(2) provides that:
Chapters 1 and 3 apply, so far as they are relevant and not inconsistent with this Chapter, to a proceeding under the AD(JR) Act.
I will turn to the general requirements of applications to this Court in a moment, but Rule 42.02(1) provides:
A person who wants to apply for an order of review under subsection 11 (1) of the AD(JR) Act must file an originating application, in accordance with the approved form;
That appears to have been done, but subsection (2) provides:
If the grounds of the application include an allegation of fraud or bad faith, the originating application must include details of the alleged fraud or bad faith.
Lack of good faith is one of the matters referred to in the grounds of the application filed on 14 September 2012.
The general provisions of the Rules relating to the filing of the applications provided for in Chapter 1 of the Rules, of course, apply to this application, as they do to all other applications in the Court, and in particular, Rule 4.05 of the Rules of Court provides that:
A person filing an application or response, whether seeking final, interim or procedural orders, must also file an affidavit stating the facts relied on,
and then a number of exceptions to that obligation are given by the Rule, none of which are material to this application.
So it was, presumably, because of the paucity of information provided in the affidavit filed with the application in relation to the facts relied upon in respect of the grounds alleged in the application, together with the specific failure to address the matter of bad faith that is a specific requirement of the Rule relating to these proceedings – it was, presumably, on account of a combination of those factors that Lucev FM made the order that Mr O’Donoghue file and serve an amended application and affidavit. He has not done that.
The respondent has filed an affidavit which has been read onto the transcript. It is an affidavit of Mr Gerrard of 30 November 2012 although it cannot truly be described as a “responsive affidavit”. It was an affidavit filed in the absence of any material having been filed by the applicant.
I should say that the application relates to a decision of the AAT to list Mr O’Donoghue’s application before that Court for hearing on 17 December 2012. The application relates both to the decision to list it and also to the decision not to adjourn it. To some extent, the two matters are different sides of the same coin.
The applications before the Administrative Appeals Tribunal relate to Mr O’Donoghue’s applications under the Freedom of Information Act made to both the Migration Review Tribunal and the Department of Immigration and Citizenship.
There are two separate applications. They were both the subject of internal review, which were unsuccessful, and on 19 April 2010 Mr O’Donoghue applied to the AAT for a review of the Migration Review Tribunal’s decision not to provide the documents On 20 September 2010 he made a similar application relating to the Department’s refusal to provide the documents.
The proceedings were consolidated when, on 30 March 2011, the AAT listed the matter for hearing on 13 June 2011. That consolidated hearing of the two applications has been adjourned on four occasions: 13 June, the one I have just referred to; 22 September, 9 November and 29 February. It appears that all but the first of those adjournments were made on the application of Mr O’Donoghue, who made a further application to adjourn the proceedings, as we know, that has given rise to the application to this Court.
At the outset of today’s proceedings, Mr O’Donoghue sought an adjournment of this hearing, and in support of that application he referred to the fact that he did not have the copy documents that were the subject matter of the application before the AAT, but even though we do not know a lot about Mr O’Donoghue’s application from the material that he has filed, one thing we do know is that a substantive aspect of his application is the failure to furnish the copy documents, and he told me today that these are the documents that were released as a result of his Freedom of Information applications.
He has had them in his possession at one time or another, but does not presently have them in his possession and wanted me to adjourn this hearing so that they could be furnished to him. I took the view, and put to him, that that seemed to me to be an integral part of the very application he was seeking to adjourn. I could not follow, and he was not able in response to put anything to me that assuaged my concerns, why, the matter being an integral part of his application, it mandated the adjournment of the application.
He also put to me that he had other matters to deal with, both in the Family Court and, as I understand it, a special leave application to the High Court, and other Federal Court applications, the substance of which was not put to me and did not need to be put to me. After our colloquy in relation to these matters, they were the only two matters that I identified as said to warrant the adjournment and I did not think there was substance in either of them. I think the fact that the application relates itself to a refusal to adjourn an application is also a matter to be taken into account in determining whether to adjourn this application, as is the circumstance that refusal of the application to adjourn in the AAT is a refusal to adjourn not a matter that Mr O’Donoghue has been brought to Court about, but his own application to the Court, and in all of the circumstances and for the reasons I have now given, I consider it appropriate to refuse his application to adjourn this matter before me today.
He then applied for a stay of the proceedings in the AAT and that seemed to me to be asking me to make an order by way of stay on exactly the same subject matter as the application itself. The stay may have been necessary if his application before me today had been unsuccessful, if he was indicating an intention to appeal to another Court. Either way, it was not appropriate for me to deal with the application for the stay at that point, that is, at the outset of the hearing, and for that reason the application for the stay was refused.
I was then asked to state a case and Mr O’Donoghue explained the nature of the stated case. He did not quibble with me and, of course, he could not quibble about this, that it was an oral application. Before the Court takes the very serious step of stating a case to the High Court or to any other Court, proper opportunity for reflection on the matter has to be provided both to the Court and to the other party to the proceedings; at the very least, some documents have to be filed in which the order is sought and an affidavit filed explaining the basis for the invitation being given to the Court to state a case. Neither of those things had been done. The application was made ex tempore, as it were, and in those circumstances I refused to accede to it. I did that especially given that if, at that point of the hearing, I heard argument in relation to that matter, it would have had the possible effect of taking up the time allocated to determine the application of Mr O’Donoghue that is before me and in respect of which I had already refused an adjournment.
So as we embarked upon the hearing proper I invited Mr O’Donoghue to make submissions in support of his application and he declined to do so. I invited him to take the opportunity to reflect upon that decision but he declined that opportunity and so I proceeded to deal with his application on the basis of only having before me the application itself and the five paragraphs; one sentence per paragraph, in the affidavit to which I have referred. So at the conclusion of his case before me, what did I know of his case in respect of the adjournment? The answer has to be very little indeed. I had a number of assertions in his affidavit and in the grounds, but without any particularity having been provided.
There is no doubting as a general proposition that an unreasonable refusal of an adjournment, whether that is in the form of a refusal of an adjournment per se or the refusal of an adjournment that is implicit in the listing of a matter or a combination of both, as appears to be the case here, can constitute a denial of procedural fairness.
There is ample authority for that proposition. The authorities were discussed by Edmonds J in Achen Daw v Minister for Immigration and Citizenship and Administrative Appeals Tribunal [2012] AATA 70; a matter involving refusal of the AAT to grant an adjournment so as an applicant could obtain legal advice. At [20], his Honour says this:
The applicant invoked the proposition, referred to by Hunt J in White v Hall (1983) ASC 55-247 at 56,250, that “where the unreasonable refusal to grant an adjournment prevents a party from properly presenting its case, there is a denial of natural justice.”
His Honour goes on:
The proposition should not be taken out of context. In White v Hall, Hunt J concluded that a breach of procedural fairness had occurred because the referee declined a party an opportunity to bring forward crucial evidence in an admissible form. Hunt J noted that no reason was given for the refusal to grant an adjournment to allow for that evidence to be prepared and the refusal was “plainly unreasonable”.
His Honour goes on at [21]:
As the second limb of this makes clear, the proposition is founded in the requirement of procedural fairness that a party must be given a reasonable opportunity to be heard, which may be translated in a judicial or quasi judicial setting as a reasonable opportunity to present one’s case. A hearing will miscarry in a procedural fairness sense by reason of a refusal of an adjournment only if the refusal is unreasonable and has the consequence that a party is prevented from having a reasonable opportunity to present its case.
His Honour found in that case that it was not possible to characterise the refusal of the adjournment as unreasonable. Because of the way Mr O’Donoghue has chosen to conduct his case, that is, his decision to file a very short-form affidavit in the first instance which, in my view, did not comply with provisions of either Chapter 1 or Chapter 6 of the Rules and secondly, his refusal to comply with the order of Lucev FM made on 8 October 2012 to file and serve an amended application and further affidavit material and, thirdly, his declining to make submissions when called upon to do so before me today, those decisions of his have left me in the position where I am really only able to make some kind of prima facie assessment of the reasonableness of not granting the adjournment. As I say, the view I take is that the decision to list is implicitly a refusal to grant an adjournment. I have also proceeded upon the basis of the assumption that it is, in truth, an application pursuant to s.6 of the Administrative Decisions (Judicial Review) Act1977 even though that was not identified in the application itself and the opportunity to take that up, provided by the order of Lucev FM, was declined. It is a matter that can only sound in the applicant’s favour that I take that view in order to be satisfied that at least the jurisdiction of the Court has been engaged.
The only other evidence before me for the purposes of this application, is the affidavit of Mr Gerrard of 30 November 2012 which was read for the purposes of the proceedings, without opposition from Mr O’Donoghue who also declined an opportunity to cross-examine Mr Gerrard on the affidavit. But the affidavit really only provided an occasion for the exhibiting of documents which explained the procedural history of the matter and no issue has been taken with the matters raised, save and except that Mr O’Donoghue has clarified matters referred to in paragraph 1 of Mr Gerrard’s outline of submission.
So looking at the broad circumstances of the application, just to inform myself as much as I can about the nature of the application and the merit of it, it looks as if after a delay in one case since April 2010 and in the other since September 2010, which is when the applications were first filed before the AAT, it looks like the Tribunal made the decision that it did in September to list the matter for final hearing.
In terms of assessing the reasonableness of the refusal of the adjournment, I note that that left a period of approximately two months between the notification of the listing and the hearing itself. So to the extent that I can infer anything, in terms of a lack of opportunity to provide it to Mr O’Donoghue to prepare for the hearing, the facts would not seem to support that. That is leaving altogether to one side the fact that the listing was made some 12 months and 17 months respectively after the filing of the applications themselves.
The other circumstance that I can identify as material to assessing the reasonableness of the refusal of the adjournment is the fact that it was Mr O’Donoghue’s own applications that we are talking about. We are not talking about a self-represented person being brought to Court on the applications of instrumentalities of the Commonwealth. They are brought to Court on his applications. It is his own applications that are being listed for hearing. That, again, is a general circumstance I can take into account in evaluating the reasonableness of the adjournment. Thirdly, it is material, I think, to take into account the period of time the applications had been before the Tribunal and I referred to the time lines there. Fourthly, the fact that there had been four previous adjournment applications, three on his motion, is another circumstance that needs to be taken into account.
As to the refusal to provide the copy documents or to provide them for a second occasion, I just have no way of evaluating that decision in terms of s.6 of the Act because I have not been told about the way in which the provision of those documents relates to the refusal of the adjournment. I am not prepared to draw inferences. I have not been told in affidavit form or otherwise. So, in those circumstances, it seems to me that I have not been placed in the position where I have been able to identify any merit in any aspect of the application even, drawing the inferences I have drawn in relation to it being an application under the AD(JR) Act and the other inferences to which I have referred.
The application will be dismissed.
There is no reason why costs should not follow the event in the circumstances of the failure to file adequate affidavit material and the decision not to make any submissions on the application itself once the adjournment application was refused. Those matters sound strongly in favour of the order for costs in favour of the third respondent.
Lucev FM gave reasons why he thought it appropriate to refuse a request for an order for transcript of a procedural hearing on 8 October 2012 in his decision of 22 October 2012. I understand his reasons for so doing. Those circumstances are different to here, of course, where there has been a final hearing of the matter, and especially given the circumstances of Mr O’Donoghue’s incarceration, it seems to me reasonable for the Court to order the provision of transcript.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 13 December 2012
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