O'Donoghue v Australian Information Commissioner (No 2)

[2012] FCA 1152

FEDERAL COURT OF AUSTRALIA

O’Donoghue v Australian Information Commissioner (No 2) [2012] FCA 1152

Citation:		O’Donoghue v Australian Information Commissioner (No 2) [2012] FCA 1152
Parties:		VINCENT THOMAS O'DONOGHUE v AUSTRALIAN INFORMATION COMMISSIONER and MIGRATION REVIEW TRIBUNAL
File number:		WAD 183 of 2012
Judge:		GILMOUR J
Date of judgment:		18 October 2012
Date of hearing:	18 October 2012
Place:	Perth
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	10
Counsel for the Applicant:	The applicant appeared in person
Counsel for the First Respondents:	Ms A Ladhams
Solicitor for the First Respondents:	Australian Government Solicitor
Counsel for the Second Respondents:	Mr A Gerrard
Solicitor for the Second Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 183 of 2012

BETWEEN:

VINCENT THOMAS O'DONOGHUE
Applicant

AND:

AUSTRALIAN INFORMATION COMMISSIONER
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	18 OCTOBER 2012
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The oral application for an adjournment be dismissed.

2.The applicant pay the second respondent’s costs of the application, to be taxed if not agreed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 183 of 2012

BETWEEN:

VINCENT THOMAS O'DONOGHUE
Applicant

AND:

AUSTRALIAN INFORMATION COMMISSIONER
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	GILMOUR J
DATE:	18 OCTOBER 2012
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The following are the edited reasons given ex tempore in this matter on 18 October 2012.

2. This is an oral application brought by the applicant for an adjournment of the hearing of the second respondent’s application for summary judgment until March 2013.  Presently it is listed for hearing on 6 November 2012. 

3. The history of this matter is that, on 7 August 2012, the applicant filed an application for judicial review.  The matter came on for a directions hearing before me on 4 September 2012.  At that time orders were made including that the second respondent file and serve its then foreshadowed application for summary judgment with any supporting affidavits within 14 days.  The applicant was then ordered to file any responsive affidavits within 14 days from the service of the second respondent’s application and supporting affidavit. 

4. Whilst the second respondent has complied with the orders in relation to the filing and serving of its application for summary judgment with a supporting affidavit, the applicant has not filed his foreshadowed affidavit, in compliance with these orders.   

5. The applicant, by letter dated 9 October 2012, addressed to my associate wrote, amongst other things, the following, and I quote:

   During the course of those proceedings on 4 September 2012, Mr Justice Gilmour indicated that it was open to the parties to indicate to the Court any lack of readiness and or preparedness to proceed in accordance with the orders and directions made.

6. I will refer back to this assertion in due course.  The applicant says, and I do not doubt it for a moment, that there are particular difficulties for him as a person incarcerated in Hakea prison and awaiting extradition from this country to Ireland.  These are difficulties which are probably self-evident but certainly include some difficulty, at times, in gaining access to a computer and legal information.  However, I note that at the directions hearing, when I listed the summary judgment application to be heard on 6 November 2012, I asked the applicant whether that date was suitable to him and he responded:

   Insofar as I can confirm that it is. I don’t know that it is or not, but for present purposes unless there’s something else because I have a number of other court matters, including Family Court matters.  I’m not sure if anything conflicts with that. 

   I said:

   Well, I wonder if you would be good enough to inform my associate.

7. Accordingly, the qualification placed on the listing date for the hearing of the second respondent’s application for summary judgment was as to whether or not that date conflicted with any of the applicant’s other court matters which might have had the same hearing date.  It was not subject to the qualification as described in the applicant’s letter, which I set out above.  

8. I should say that I do not regard the applicant’s matter as a difficult one.  The facts do not appear to be in contention.  I have on a number of occasions, both today and on 4 September 2012, invited the applicant to state, even in general terms, what might be the content of any affidavit material that he says he wants to put on but he has been unable to enlighten me as to what that might be, although he accepted in the course of the hearing this morning that he knows of no document which is not already before the Court and which would be relevant to the summary judgment application.

9. There is no basis, in my view, for adjourning the hearing of the matter, and accordingly the date of 6 November 2012 will remain.  Contrary to the submissions put by the applicant, there is a very real public interest in the timely disposition of matters before this Court where the respondents, and the second respondent in particular, are also entitled to a timely resolution of the case. It is not to be forgotten that properly understood, it is Mr O’Donoghue who is the prosecutor in this matter.  He is the applicant.  He ought to be taken to know the nature of his case and he will have had some three months since filing his application for judicial review to prepare for the hearing on the date which I have fixed. 

10. Accordingly, the oral application for an adjournment is dismissed.  There will also be an order that the applicant pay the second respondent’s costs of the application, to be taxed if not agreed.

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

Associate:

Dated:        23 October 2012