O'DONOGHUE v Administrative Appeals Tribunal
[2012] FMCA 964
•22 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| O'DONOGHUE v ADMINISTRATIVE APPEALS TRIBUNAL & ORS | [2012] FMCA 964 |
| ADMINISTRATIVE LAW – Application for an order for review of decision of Administrative Appeals Tribunal. |
| PRACTICE AND PROCEDURE – Application for copy of transcript of first directions hearing. |
| O’Donoghue v Minister for Immigration & Anor [2010] FMCA 345 |
| 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: | Lucev FM |
| Hearing date: | 22 October 2012 |
| Date of Last Submission: | 22 October 2012 |
| Delivered at: | Perth |
| Delivered on: | 22 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondents: | Mr A Gerrard |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Applicant’s Application for a copy of the transcript of the first directions hearing on 8 October 2012 be dismissed.
There be no order as to costs.
Reasons for Judgment reserved for publication from Chambers later today.
AND THE COURT NOTES THAT:
The Applicant’s Application for a precedent for an amended application for review was withdrawn at hearing.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 217 of 2012
| VINCENT THOMAS O'DONOGHUE |
Applicant
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
| HON CHRIS BOWEN MP, MINISTER FOR IMMIGRATION |
Third Respondent
REASONS FOR JUDGMENT
The applicant, Vincent Thomas O’Donoghue, is incarcerated in Hakea Prison in Canning Vale, a southern suburb of Perth. On 14 September 2012 he caused to be filed, seemingly by facsimile from Hakea Prison, an application for an order for review and accompanying affidavit, which, as best the Court understands it, seeks to restrain the hearing of an appeal by the Administrative Appeals Tribunal,[1] and which also seeks to restrain the Migration Review Tribunal[2] and the Minister for Immigration[3] from conducting the AAT Appeal Hearing. The AAT and MRT have filed submitting appearances.
[1] “AAT Appeal Hearing” and “AAT” respectively.
[2] “MRT”.
[3] “Minister”.
It is relevant to note that the form of the application for an order for review is not irregular.
The matter came on before this Court, as presently constituted, for a first directions hearing on 8 October 2012. There was:
a)some discussion about appearances by the AAT, MRT and Minister;[4]
b)discussion about the necessity to have the matter heard as quickly as possible given that the AAT Appeal Hearing, and apparently other hearings before the Federal Court, Family Court and High Court, were “imminent”;[5] and
c)some discussion concerning the issue of bias arising from the Court, as presently constituted, recusing itself from further hearing of an earlier matter in relation to Mr O’Donoghue, by reason of a firm view that it had expressed, on an interim application, about the nature and construction of a particular regulation relevant to the final disposition of that application by Mr O’Donoghue,[6]
and the Court then observed as follows:
Mr O’Donoghue, the first thing I think that has to happen here is that you, and I will hear from Mr Corbould in a moment, that you have to file an amended application and further affidavit in support of the application for an order for review and one complying with rule 42.03 of the Court’s Rules because otherwise, with respect to you, I don’t think you’re going to get very far …[7]
[4] Transcript, page 2.
[5] Transcript, pages 2-3.
[6] O’Donoghue v Minister for Immigration & Anor [2010] FMCA 345; Transcript, page 3.
[7] Transcript, page 3.
There was then some discussion concerning the date of the hearing involving Mr Corbould, who then appeared for the MRT (who had not at that stage filed its submitting appearance), and a minute of proposed orders that had been prepared by Mr Corbould.[8] Mr O’Donoghue indicated that he was not really in a position to object to the minute of proposed orders handed up by Mr Corbould.[9]
[8] Transcript, pages 3-4.
[9] Transcript, page 4.
Mr O’Donoghue then informed the Court that, in his circumstances, he had difficulty complying with timeframes which were imposed by Court orders, but then went on to say that:
It’s not that I’m trying to diminish the importance of the application. It is very important and I will endeavour to file my amended application in compliance with 42.03 and my affidavit as soon as possible. Can I ask the court or Mr Corbould to send me a copy of that minute.[10]
[10] Transcript, page 4.
The Court then read out the terms of the orders, and having done so Mr O’Donoghue then said:
Your Honour, just, without interrupting, can I ask your Honour to have your office send me a precedent 42.03 because I don’t have ready access to documentation of those – of that nature. I don’t have access to internet.[11]
[11] Transcript, page 5.
The Court observed that:
All right. Well, I don’t think it will cause the respondents any difficulty if we annex a copy of rule 42 to the orders that we send out.[12]
[12] Transcript, page 5.
Mr Corbould indicated that there was no difficulty with the Court’s suggestion.[13] The Court observes that, in the circumstances of this matter, it is an unsurprising concession by a Commonwealth entity obliged to act as a model litigant.
[13] Transcript, page 5.
After the Court had told Mr O’Donoghue that whatever hearing date was set an order would be sent to the relevant controller at the State Ministry of Justice to bring him up to the Court on that day, the Court indicated that there would be orders in the terms that the Court had indicated, and the Court would adjourn.[14]
[14] Transcript, page 6.
The Court made orders in the following terms, entered on 9 October 2012:
1. The applicant file and serve an amended application for an order for review and any affidavits in support of the application by 29 October 2012.
2. The respondents file and serve any affidavits in response by 19 November 2012.
3. The application be listed for hearing at 2.15pm on 4 December 2012 before Federal Magistrate Lindsay.
4. The applicant file and serve an outline of submissions not less than 14 days prior to the hearing.
5. The respondents file and serve an outline of submissions not less than 7 days prior to the hearing.
6. There be liberty to apply.
7. Costs be in the cause.
The Court also understands that a copy of r.42 of the Federal Magistrates Court Rules 2001 (Cth) was enclosed with the orders sent to Mr O’Donoghue at Hakea Prison.
On 12 October 2012 Mr O’Donoghue faxed to the Court, to the attention of the presiding Federal Magistrate’s associate, a letter dated 11 October 2012, which is in the following terms:
I refer to the above and thank you for your correspondence received today enclosing a copy of the orders and directions made 08 October 2012 by his Honour Magistrate Lucev.
It would be most helpful if you could send me a copy of the transcript of those proceedings to avoid confusion.
Further, his Honour indicated that the Court would send me a precedent form in regards to the amended application for an order for review. What in fact was sent to me was an extract from the regulations which is of no benefit to me as I have no access to resources to ascertain the correct from/s (sic) to be submitted or the format of those form/s.
I look forward to your response with transcript and forms as soon as possible given that time is of the essence as outlined in the orders made 08 October 2012.[15]
[15] “Mr O’Donoghue’s Letter”.
Mr O’Donoghue’s Letter was not copied to any of the respondents or their solicitors. Ignoring, for present purposes, the impropriety of writing to the Court without copying in other parties, the Court observes that at no stage did the Court indicate that it would send Mr O’Donoghue “a precedent form” for his amended application for an order for review. In that respect, at least, what was said by the Court was misrepresented in Mr O’Donoghue’s Letter.
Having regard to that misrepresentation, but also in fairness to Mr O’Donoghue, and to ensure that the Court’s dealings with Mr O’Donoghue in this respect were transparent, the Court determined not to deal with Mr O’Donoghue’s Letter administratively, but rather to treat it as an interim application for:
a)a copy of the transcript of the first directions hearing of 8 October 2012; and
b)a precedent form for the amended application for an order for review.
At hearing the application for a precedent form for the amended application for an order for review was withdrawn.
When pressed Mr O’Donoghue essentially submitted that he sought the transcript in order to “clarify” what happened at the first directions hearing on 8 October 2012, and for “completeness” of the record in the event of an appeal.
The transcript of the directions hearing of 8 October 2012 is of a 13 minute hearing, running to six pages (including the cover sheet) in respect of a first directions hearing at which orders were made, without any real objection, in terms of the minute of proposed orders then proposed by the MRT.
It must be borne in mind that:
a)the orders of this Court are, and were on this occasion, reduced to writing by the Court, signed by the presiding Federal Magistrate, sealed and sent by post and email to the parties; and
b)the directions hearing on 8 October 2012 gives rise to:
i)no issue of legal controversy, or no other complex or difficult issue; and
ii)no issue at all, other than the subsequent requests in Mr O’Donoghue’s Letter.
There are good reasons why Mr O’Donoghue should not be given a copy of the transcript. First, no party has a right at law, or otherwise, to be given a copy of the transcript of proceedings in this Court. Second, parties, if they wish, can order copies of transcript, and pay for the transcript ordered. Third, there is plainly no need in the circumstances for Mr O’Donoghue to receive a copy of the transcript, as no issue arose from the 8 October 2012 directions hearing, or could arise for the purposes of an appeal, to which the transcript might be relevant. Fourth, it would set a most undesirable precedent for the Court to start distributing, at the taxpayer’s expense, transcripts of first directions hearings in respect of matters where there was no objection to the orders made and no legal issues either at all, or of any consequence, arising in the directions hearing itself.
There is simply no basis on which Mr O’Donoghue can establish any entitlement, either at all, or in his particular circumstances, to be given a copy of the transcript of the first directions hearing in this Court on 8 October 2012.
For the above reasons Mr O’Donoghue’s application for a copy of the transcript of the first directions hearing in this matter on 8 October 2012 will be dismissed.
There will be no order for costs in the matter. The matter has been called on by the Court to ensure transparency, that is, to ensure that what it has done is not misrepresented in the future, and it therefore does not seem appropriate that, in all the circumstances, there be any costs orders. There will therefore be no order as to costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 22 October 2012
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