O'Neill v Minister for Immigration - [2006] FMCA 1912

FEDERAL MAGISTRATES COURT OF AUSTRALIA

O'NEILL v MINISTER FOR IMMIGRATION

[2006] FMCA 1912

MIGRATION – Application for transfer to Federal Court – meaning of ‘pending’ application – whether order to transfer constitutes an exercise of jurisdiction – relevance of time limits of application filed in Federal Court – interest of the administration of justice – denial of Applicant’s right to bring application – prejudice – meaning of ‘proceedings’ – discretion of Court pursuant to s.39 of the Federal Magistrates Act 1999 – comity between Federal Courts – significance of transfer power – Application allowed.

Federal Magistrates Court Act 1999, s.39
Migration Act 1958, ss.476, 477, 501(2)
Trade Practices Act 1974, s.86A

Dunn v Bevan (1922) 1 Ch 276
McIntosh v National Australia Bank (1988) 17 FCR 482

Applicant:

GARY O'NEILL

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File number:

MLG 1045 of 2006

Judgment of:

McInnis FM

Hearing date:

14 December 2006

Delivered at:

Melbourne

Delivered on:

18 December 2006

REPRESENTATION

Solicitor for the Applicant:

Ms S. Sowerwine

Solicitor for the Respondent:

Mr G. Carroll

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Pursuant to s.39 of the Federal Magistrates Act 1999 the application be transferred to the Federal Court of Australia.
Costs reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1045 of 2006

GARY O'NEILL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is effectively an ex tempore judgment of the court in relation to an application by the Applicant for the transfer of the substantive proceedings to the Federal Court of Australia pursuant to s.39 of the Federal Magistrates Act 1999 (the Federal Magistrates Act).
The application for transfer of the proceedings appears to have been filed with the court on 23 November 2006. At the time when the court heard the application, it did so by a video-link from Sydney to Melbourne and, due to other court commitments, the court was unable to then deliver the decision which I now deliver; which, as I have indicated, is delivered effectively as an ex tempore decision.
The substantive application in this matter was an application filed on 16 August 2006, whereby the Applicant seeks judicial review of a decision of the Respondent dated 21 July 2006. There is no dispute that the date when notification of the decision was received by the Applicant was 24 July 2006, and that the section of the Migration Act 1958 (the Migration Act) under which the decision was made was s.501(2). It is not necessary in this decision to refer to the application in any further detail.
The Respondent, by notice of objection to competency filed 30 October 2006, objected to the jurisdiction of the court. It appears from the file that after the application had been filed, a notice of appearance was filed by the Respondent; but it was not until 30 October 2006 that a notice of objection to competency was filed. In any event, the notice of objection to competency states the following:
“1. Sub-paragraph 476(2)(c) of the Migration Act 1958 excludes the jurisdiction of the Federal Magistrates Court in relation to a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501 of the Migration Act 1958.”
The notice of objection to competency was supported by an affidavit sworn by Michael John Brereton on 6 December 2006. Relevantly, in that affidavit the deponent refers to the filing and service of the notice of objection to competency and otherwise deposes as follows in paragraph 4:
“4. On 23 October 2006 I became aware that this application could not be brought in this Court because of the effect of s.476(2)(c) of the Migration Act 1958. I spoke with Ms Sam Sowerwine, a solicitor employed by Victoria Legal Aid, and brought this to her attention.”
Orders were made by the court on 4 September 2006. The orders, made by a Registrar, could properly be described as procedural orders, and related to the filing and service of relevant documents including a court book. It appears to be common ground that as at the date the orders were made by consent on 4 September 2006, neither party had realised that the application was one which should properly be before the Federal Court and should not have been filed in this court. This is so, notwithstanding the fact that the relevant legislation which vested jurisdiction in the Federal Court for an application for this kind, namely, review of a decision made personally by the Minister under s.501 of the Migration Act, came into operation on 1 December 2005.
There is no dispute that the court does not have power to review the decision made personally by the Minister under s.501 of the Migration Act. Having regard to the chronology of dates and the operation of s.477 of the Migration Act, it also appears that it is not in dispute that if the court were to refuse the grant of the transfer to the Federal Court and the Applicant were then required to re-issue the application in the Federal Court, then that application, by virtue of the operation of s.477 of the Migration Act, would be out of time and the Federal Court would then have no power, it would seem, to extend time to permit the application to be heard and determined.
It is clear therefore that the consequences of a refusal to transfer this application are significant. A refusal to transfer the application in this case would effectively terminate the Applicant's right of review of the minister's decision.
Section 39 of the Federal Magistrates Act 1999 provides for the transfer of proceedings from this court to the Federal Court, and relevantly provides the following:
“(1) If a proceeding is pending in the Federal Magistrates Court, the Federal Magistrates Court may, by order, transfer the proceeding from the Federal Magistrates Court to the Federal Court or the Family Court.
(2) The Federal Magistrates Court may transfer a proceeding under this section:
(a) on the application of a party to the proceeding; or
(b) on its own initiative.
(3) In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Magistrates Court must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(2); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c) whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
If a proceeding is pending in the Federal Magistrates Court, the Federal Magistrates Court may, by order, transfer the proceeding from the Federal Magistrates Court to the Federal Court or the Family Court.”
It is relevant to note that s.39(3) sets out four matters which the court should consider in deciding whether it will exercise the discretion to transfer the pending proceeding. Those matters relevantly include whether it is in the ‘interests of the administration of justice’. In my view, it is that clause which is relevant to the present application for transfer filed by the Applicant.
It is my view that in this matter the application, absent of the court's formal determination of the objection to competency, is properly regarded as a pending application. I note that the new Shorter Oxford English Dictionary defines "pending" to include:
“Remaining undecided, awaiting decision or settlement.”
I have been referred by the parties to a number of decisions which relate to the question of "pending". It is sufficient in my view to refer to the decision of Dunn v Bevan (1922) 1 Ch 276. In that case, Sargant J at 284, quoting from "the well‑known work of Oswald on Contempt of Court, Second Edition, p.62", applies the following quotation:
“Proceedings are pending immediately the writ is issued and as long as any proceedings can be taken.”
It should be noted that that was in the context of a contempt of court hearing, and further in the context of comments that may have been made after judgment. Nevertheless, the quotation adopted by Sargant J from Oswald on Contempt of Court is apposite to the present case.
There are many ways in which the court can describe what is meant by "pending", however for present purposes I do not see any need to go beyond the dictionary definition referred to earlier in this judgment, and to also note that in this case, adapting the words referred to by Sargant J, it is my view that the application is pending immediately the application is filed in this court and as long as any proceedings can be taken in this court. Proceedings will include notices of objection to competency and other applications, which in my view also relevantly include an application pursuant to s.39 of the Federal Magistrates Act to transfer the proceedings to the Federal Court.
It has been submitted for an on behalf of the Applicant that although this court does not appear to have jurisdiction to entertain the application for judicial review of the Minister's decision made personally under s.501 of the Migration Act by virtue of the operation of s.476 of the Migration Act, the Court does nevertheless have power to transfer the proceeding to the Federal Court. Further, it is submitted by the Applicant that it would be in the interests of justice to do so in the proper exercise of this court's discretion to transfer the proceedings. It is argued on behalf of the Applicant that although the court may not have jurisdiction to hear and determine the application for review, the court may exercise its discretion to transfer the proceeding if it meets the requisite description of a proceeding that is pending.
In my view, the proper interpretation of the application before the court, having regard to the definition of "pending" referred to earlier in this judgment, leads me to conclude that this is indeed a pending application. I am satisfied in the circumstances that this court has a broad discretion to transfer applications that are pending to the Federal Court.
Reference was made by the Applicant in support of the submissions to the Explanatory Memorandum to the Migration Litigation Amendment Bill 2005. I have found limited assistance from the explanatory memorandum, though note that it was the intention of Parliament, which is clearly expressed in any event in the relevant provisions, that the Federal Court should have jurisdiction to hear and determine applications for review of, amongst others, decisions made personally by the minister under s.501 of the Migration Act.
The reference in the Explanatory Memorandum to the desire to ‘direct’ applications of this kind to the Federal Court should not be taken to mean that this court, in the exercise of its discretion under s.39 of the Federal Magistrates Act, is likewise directed to transfer matters to the Federal Court. The court's discretion under s.39 of the Federal Magistrates Act is a discretion which must be exercised judicially having regard to the relevant factors, which in this instance I have determined primarily is the question of whether it is in the interests of the administration of justice to transfer this application. If Parliament had intended to in any way restrict or fetter the court's discretion to transfer matters of this kind then it could easily have done so.
In the absence of any specific amendment restricting this court's powers and discretion pursuant to s.39 of the Federal Magistrates Act, I am satisfied the court has a discretion which must be exercised judicially having regard to the relevant factors to be taken into account.
In my view, this application is one which highlights the significance of s.39 of the Federal Magistrates Act. It must be remembered that that provision is one which was introduced from the commencement of this court. It provides a sensible option which would enable a degree of comity between two federal courts. Both courts, established under Chapter III of the Constitution, are vested with federal jurisdiction.
In applications of the present kind, it is clear that both courts share in the broader sense jurisdiction to hear and determine migration matters. The recent amendments, however, clearly indicate that it is the Federal Court which would have jurisdiction specifically over the application currently pending before this court; though of course this court now retains what could only be described as extremely broad jurisdiction to hear and determine the majority of judicial review cases arising out of decisions made pursuant to provisions of the Migration Act.
Nevertheless, the power to transfer matters from this court to the Federal Court is an important power which should not in my view be unduly restricted. It is not appropriate nor indeed necessary to further consider and define the question of what might be meant by "in the interests of the administration of justice". In this case, it is clear to me that where the application is pending, as I have found, and where it is evident from the material before the court, that should the court refuse to transfer the application then a significant prejudice would be visited upon the Applicant. The prejudice is obvious, it would mean that the Applicant would be met by a time limit should the Applicant seek to re‑issue the application in the Federal Court. The argument in relation to the time limit would be fatal to the application.
It would appear that both parties and I might add even a Registrar of the Court were not aware at least up until September 2006, and indeed, on the affidavit evidence from the solicitor for the Respondent, not until October 2006, of the fact that this application should have been filed in the Federal Court. In those circumstances the effluxion of time which has occurred between the date when the application was filed, which was within time, and the date when the issue first arose in the minds of the lawyers representing the parties, should not be permitted to be used against the Applicant to preclude the Applicant from pursuing the application in the Federal Court.
This is what I would regard as a somewhat rare and unusual application. I would think it would be very unlikely that in the future any further applications would be filed in this court, as I suspect registry would bring to the attention of any Applicant, whether represented or otherwise that the appropriate court is the Federal Court for applications of this type. I would also expect, given the legislation has now been in operation since 1 December 2005, that it is unlikely that practitioners on both sides, and certainly the practitioner representing the Minister, would not at the earliest opportunity bring to the attention of the court the issue of jurisdiction early enough to enable an Applicant to otherwise pursue rights appropriately in the Federal Court.
Any omission or error on the part of the Applicant's solicitors which was the subject of what might be loosely described as ‘acquiescence’ on the part of the Respondent's solicitors should not in my view be visited adversely against the Applicant.
I should also add that both parties referred the court to a number of decisions which relate to cross-vesting legislation. I am not assisted by those decisions, as they simply relate to the powers of the Federal Court to transfer matters to the state Supreme Court. Likewise, I did not find great assistance in the decision relied upon by the Respondent of McIntosh v National Australia Bank (1988) 17 FCR 482 (McIntosh). That case dealt with the application of s.86A of the Trade Practices Act 1974. That provision enabled the transfer of matters to the state or territory courts.
In my view, s.39 of the Federal Magistrates Court is a provision which provides for transfer from one federal court to another federal court. The comity between the two federal courts is important. The broad discretion provided to this court, which I have found exists under s.39, should not be fettered or otherwise restricted by application of cases which deal with either cross-vesting legislation or a specific provision of the Trade Practices Act, as was the case in the McIntosh decision.

I am satisfied that those decisions referred to by the Respondent do not apply to the court's discretion in the present application.
In my view, having considered the chronology and particularly having considered and found that there is indeed a pending application in this court, that in the exercise of the court's discretion it is clearly a matter which is in the interests of justice to in fact transfer the application to the Federal Court. As I have indicated earlier in this judgment, the prejudice which would otherwise be suffered by the Applicant is considerable. The failure of this court to transfer the application would be fatal as a result of the operation of s.477 of the Migration Act. I do not accept that transferring a pending application constitutes exercise of jurisdiction in the absence of a decision by the Court in relation to objection to competency.
In matters of this kind, it is my view that the Respondent as a model litigant, as with other practitioners, has a duty to bring to the attention of the court at the earliest opportunity any issues concerning want of jurisdiction. Likewise, it is the obligation of the court also in the administration of cases properly listed before it to consider issues of jurisdiction at the earliest opportunity. Unfortunately, in the present case neither party nor indeed the court itself appeared to be alert to the lack of jurisdiction in this application, and hence there has been a delay of a kind which has effectively meant that in the absence of an order for transfer the Applicant would be denied the rights which he has to seek judicial review of the decision made personally by the Minister pursuant to s.501 of the Migration Act. In my view, this is an application which requires the court to exercise its discretion in favour of the Applicant in those circumstances.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 18 December 2006