O’Donoghue v Minister for Immigration and Anor (No.3)
[2010] FMCA 464
•23 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| O’DONOGHUE v MINISTER FOR IMMIGRATION & ANOR (No.3) | [2010] FMCA 464 |
| PRACTICE & PROCEDURE – Application for adjournment of substantive hearing. |
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
| Applicant: | VINCENT THOMAS O’DONOGHUE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 3 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 23 June 2010 |
| Date of Last Submission: | 23 June 2010 |
| Delivered at: | Sydney via videolink to Perth |
| Delivered on: | 23 June 2010 |
REPRESENTATION
| For the Applicant: | In Person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application for adjournment of the substantive hearing dismissed.
Applicant to file and serve Outline of Case on or before 1 July 2010.
Applicant to provide court with bundle of proposed tender documents on or before 1 July 2010.
Outline of Respondent’s case to be faxed to the applicant and to the court by 5.00p.m. on 2 July 2010.
Costs reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PEG 3 of 2010
| VINCENT THOMAS O’DONOGHUE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Mr O’Donoghue seeks an adjournment of the hearing of his substantive application for review of the decision of the Migration Review Tribunal. He has made a number of points concerning the proceedings and his concerns about the manner in which they have been progressed, but he has not, to my mind, provided me with any satisfactory reason as to why he would not be ready to proceed on the scheduled day of 5 July which is still some 10 days away. Mr O’Donoghue tells me that he has applied for documentation to be provided to him under the Freedom of Information Act 1989. This, he says, is documentation from the files of the Attorney-General’s Department and he tells me that he has received quite a quantity of it. He does not say, contrary to all previous submissions made by the Department of Immigration and apparently accepted by Lucev FM, that he has received all relevant documents from that department’s file which go to the issues that this court will have to determine.
Mr Corbould tells me that since the decision of Lucev FM Mr O’Donoghue has received those documents, even some documents which might not have been included, with the exception of one document in which a telephone number has been redacted. From what I have heard from Mr O’Donoghue, the large number of documents that he has received from the Attorney‑General’s Department may assist him to make the case that he wishes to make at the substantive hearing, that the Department was estopped from proceeding with his application because of undertakings that it had given to him.
As Mr O’Donoghue rightly says, the doctrine of estoppel in administrative matters is one that has but faint acknowledgement in Australia. But he is entitled to put forward such authority as he can muster at the substantive hearing to persuade the court that it should act on this principle. In all other matters, it seems to me that the issue between the parties is a very narrow one. It involves a finding by the Tribunal that it could not be satisfied of certain matters it was required to be satisfied of in order to grant the visa, specifically the availability of a position with the firm of solicitors in Australia in 2009 when that position had first been offered some many years prior and, according to the Tribunal, had not been renewed.
Mr O’Donoghue makes other points. He says that he believes there is some association between this court and the Government Solicitor’s office because of the way in which the draft orders and orders that were made before Registrar Segal came into being. I am not prepared to accept that submission. It is the practice, in matters of this type before this court, that draft orders to be made at directions are prepared by one party or another. In migration matters they are generally prepared by the respondents because, invariably, the applicants are not legally represented. There is nothing inherently wrong about that. It assists the court to deal with matters expeditiously. Draft orders are usually presented in a way that enables an applicant to make objection to any of the dates or orders that would be contained therein and I have heard no complaint previously about this practice.
As noted earlier Mr O’Donoghue is a solicitor and I would be very surprised if the practice of producing draft minutes of order in directions matters was not one that was familiar to him. It would appear, in this case, that the draft short minutes were presented to Registrar Segal, were discussed between Registrar Segal, and Mr O’Donoghue and whoever was appearing for the respondents. Some amendments were made and new orders were prepared. Mr O’Donoghue complains that a copy of those orders was sent to him, not by the court but by the respondents. Mr Corbould tells me that he accepts that normally orders from a court are sent to a party by the court, but that, in this particular case, as the orders were made by a registrar in Sydney, his solicitors were not entirely clear as to the practice and in order to ensure that Mr O’Donoghue received a copy of the orders speedily they were sent direct to him. I really cannot see how this impinges upon any rights that Mr O’Donoghue has or suggests some collusion between the court and the Australian Government Solicitor.
It has now been made clear by the High Court that courts are entitled to manage their procedures so that the interests of justice can be served by the speedy resolution of cases at the minimum expense; Aon Risk Services Australia Limited v Australian National University [2009] HCA 27. Whilst this does not mean that the rights of parties should be overridden, it does mean that where it is convenient to the court to proceed with a matter with expedition and there is no obvious prejudice, that should be done. It must have been clear from the decision of Lucev FM that this case was going to proceed speedily. As Mr Corbould points out the application was first filed on 11 January 2010 so that if it is heard on 5 July that will be a period of almost seven months, hardly indecent haste in a court whose raison d’être was to provide justice that was, in the words of the former Attorney-General, “cheaper simpler and quicker.”
For reasons which he gives in his judgment, Lucev FM considered that it was not appropriate for him to hear the substantive application. The matter has been referred to Sydney and it has proved convenient for the court to sit in Perth on days surrounding 5 July. The matter can be dealt with then and, to my mind, it should be. Mr O’Donoghue tells me that he has complied with the orders of Lucev FM and has filed an amended application. Mr Corbould tells me that, by 5 pm today, his solicitors will be in a position to file an amended response. I am not prepared to grant an adjournment as sought by Mr O’Donoghue but I am prepared to discuss with him and Mr Corbould any amendments to Registrar Segal’s orders that will ensure, as far as possible, that the case comes before me in a prepared state.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 1 July 2010
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