Prime Minister John Piss the Family Court and Legal Aid v Minister for Foreign Affairs and Trade (No. 2) - [2003] FMCA 111

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PRIME MINISTER JOHN PISS THE FAMILY COURT AND LEGAL AID v MINISTER FOR FOREIGN AFFAIRS AND TRADE (No. 2)

[2003] FMCA 111

PRACTICE AND PROCEDURE – Costs – where appeal from AAT not hopeless – delay – relevance where Applicant deprived of passport from date of original decision to date of publication of appeal judgment – form or order – where having dismissed appeal Court should remit to Respondent with a discretion.

Administrative Appeals Tribunal Act 1975, ss.43(1), 44

Applicant:

PRIME MINISTER JOHN PISS THE FAMILY COURT AND LEGAL AID

Respondent:

MINISTER FOR FOREIGN AFFAIRS AND TRADE

File No:

MZ 235 of 2002

Delivered on:

21 March 2003

Delivered at:

Melbourne

Hearing Date:

21 March 2003

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr D. Perkins

Solicitors for the Applicant:

Access Lawyers

Counsel for the Respondent:

Mr P Frost

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 235 of 2002

PRIME MINISTER JOHN PISS THE FAMILY COURT AND LEGAL AID

Applicant

And

MINISTER FOR FOREIGN AFFAIRS AND TRADE

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this application I have delivered reasons for decision on 20 March 2003 and indicated in the publication of the reasons for the decision that the appropriate order of the court is that an application seeking to appeal pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) from a decision of the Administrative Appeals Tribunal (the Tribunal) delivered on 23 November 2000 be dismissed.
Having announced the order of the court, I then gave both parties an opportunity to further consider the reasons for the court's decision and to then consider in the circumstances whether or not I should make an order for costs.
The respondent's representative has made application that the court should make an order that the applicant pay the respondent's costs and that that order should include costs on the appropriate Federal Court scale up to and including the date of transfer of this application from the Federal Court to the Federal Magistrates Court which occurred on 1 March 2002. It is noted that the application was in fact issued in the Federal Court on 19 December 2000.
It is submitted for and on behalf of the respondent that after transfer of the application I should then make an order that the costs of the respondent be paid by the applicant pursuant to the scale of costs applicable to the Federal Magistrates Court.
The application for costs by the respondent is opposed by counsel for the applicant. The submissions made for and on behalf of the applicant raise two distinct issues; the first having relevance to the issue of costs but also being a separate and independent submission relating to the final form of the order to be made in this matter. The second general group of submissions relate specifically to costs.
It is submitted that having made a decision that the application be dismissed, that this court as an appellate Court from a decision of the Tribunal in all the circumstances, having dismissed the application which in turn means that the tribunal's affirmation of the respondent's decisions stand, should then go one step further and direct the respondent to issue a passport to the applicant in a form and in such manner consistent with the judgment. This would at least provide an outcome whereby the applicant would have the benefit of the issue of a passport.
It is said that in the circumstances of this case to make a direction of that kind would be to do no more than to logically follow, as I understand the submission, the consequences of the decision by this court.
That course is opposed by the respondent. It is said that the applicant now has an opportunity to request the issue of a passport in another name and a name which does not attract the exercise of the discretion of the respondent which, as indicated, has been affirmed by the Tribunal and whose decision has been the subject of consideration by this court and effectively upheld to the extent that there has been no error of law demonstrated.
In my view, the Tribunal in considering reviewable decisions clearly has the power standing in the shoes of the original decision-maker to exercise powers the decision-maker may have in relation to the issues which are relevantly before the tribunal. It is important to distinguish that it is the issues that are relevantly before the Tribunal in reviewing the decision which must be taken into account in assessing the extent and nature of the tribunal's powers upon review (see s.43(1) of the AAT Act).
The Tribunal in the present case affirmed the decisions under review and in doing so did not seek to make any further directions or recommendations pursuant to s.43(1) of the AAT Act. It could only have done so if it set aside the reviewable decision.
For the present purposes I am satisfied, however, that the tribunal does have general powers, even upon affirming a reviewable decision, to make directions which may be taken to be suggestions to be referred back to the original decision-maker.
Likewise I accept that in theory the court sitting as an appellate court considering an appeal under s.44 of the AAT Act would have powers it otherwise might vest in the Tribunal. More often than not when a matter is the subject of a successful appeal it is remitted to the tribunal, albeit often a differently constituted tribunal, for the matter to be considered in accordance with the law as determined by the appellate court. It is of course, however, possible for the court on appeal to consider making orders of a kind which specifically address issues which are of concern to the parties.
In the present case it is clear, in my view, that what has occurred is that the application before this court, that is, the appeal, is an application whereby the appellant has sought orders that the minister issue a passport in the name of the appellant. The orders sought in the application filed in December 2000 seek further or other relief and costs. Hence, it is clear that what is now being sought by the applicant is not an order that was clearly sought as an alternative order in the application.
I am prepared to accept, however, that it comes broadly under the heading of Further or Other Relief. I am further prepared to accept that in certain circumstances, even where the court has dismissed an appeal, it may be possible for the court, as indeed it would be for the tribunal on review affirming a decision of the respondent, to make certain directions by way of recommendations to the original decision-maker.
In the present case, however, in my view, it would be inappropriate for the court to do anything other than make the order dismissing the application. It is not for the court to embark upon the task of editing, suggesting or refining what might or might not be an appropriate name for a passport to be issued. That is a matter which should be the subject of consideration, not just by the respondent, but by the applicant who needs to consider rights he may have in relation to this judgment, consider what he may feel is an appropriate amended form of application and for the respondent to then exercise the discretion to consider that fresh application based upon the relevant law and matters the respondent needs to take into account.
In my view, it would be inappropriate for the court, based upon the limited information it has before it, and certainly based only upon the reasons for decision it has delivered, to embark upon the task that I have been invited to pursue for and on behalf of the applicant.
In relation to the issue of costs, it is asserted that the applicant - and this is not seriously contested - is a pensioner and in the circumstances, to that extent, being a pensioner there is at least evidence of financial circumstances which perhaps, whilst not leading to a conclusion of impecuniosity, is certainly a fact and circumstance which in the exercise of the discretion on costs the court should take into account.

I accept that it is a relevant factor that the court may take into account, but I do not accept that impecuniosity alone is a factor which would automatically persuade a court to make no order as to costs.
It is further submitted for and on behalf of the applicant that the court should take into account the delay which has occurred between the date of the original request for an issue of a passport, the date upon which that request was the subject of a decision and the further delay that has occurred as a consequence of the due process of litigation, including the application to the Tribunal, the appeal to this court, the further delay in terms of the hearing being scheduled by this court when the matter had been transferred by the Federal Court and then the further delay again in the delivery of the decision.
I accept that delay has meant over a period now of some years, certainly since the date of the first decision, namely 18 November 1998, that a citizen of this country has effectively been deprived of a passport.
It is clear from my reasons for judgment that I have accepted that there is no error of law that has been made by the Tribunal in its decision to affirm the two decisions under review of the respondent. Nevertheless, it is also clear from the reasons of the Tribunal that in part at least the applicant has succeeded in persuading the Tribunal that in fact he had used the name in question in various contexts and the tribunal was then satisfied that in the circumstances at least that issue was an issue to be decided in favour of the applicant.
The delay that occurred thereafter as a consequence of the adverse decision by the tribunal, which ultimately led to the affirmation of the reviewable decisions, has meant that the applicant has been deprived of a passport.
Mr Perkins for and on behalf of the applicant has submitted that that consequence is a matter the court can take judicial notice of, and in particular emphasises that as a citizen the applicant has then been denied the opportunity of travelling overseas, either for the purpose of family commitments, or other purposes which are well-known.

I accept for the present purposes that the court can take judicial notice of that fact, but it seems to me to be clearly obvious that the citizen in this case has effectively been denied a passport for a period now of almost four and a half years. In fact the period may be longer than that. As I indicate, the original decision was made 18 November 1998 and it may be the application was made at an earlier date. In any event, there has been a considerable period of time that has passed. During that time the applicant has not had a valid passport.
It is suggested by the respondent that it was open to the applicant to make application otherwise for a passport in a different name. In my view, to suggest that as diminishing in any way the relevance and force of the submission as to the penalty suffered effectively by the applicant as a consequence of the delay would be to presume that the applicant was not justified in pursuing initially his application to review the decisions by the respondent before the Tribunal and ultimately pursue by way of appeal to the Federal Court and this court the appeal from the Tribunal’s decision.
In my view, the application is not so obviously hopeless and without merit as to enable me to draw a conclusion that the applicant was unwise or acted otherwise inappropriately in not seeking the issue of a passport in an alternative name. Hence, it is my view that the delay in this matter is a relevant factor to take into account, as is the denial effectively as a consequence of that delay the opportunity of the applicant to travel on a valid and legitimate passport. It is a significant matter, in my view.
In the circumstances of this case where the application is an application by way of appeal from a tribunal decision where at least the applicant can be said to have been partially successful and where I accept the issues raised having regard to the accepted usage of the name are issues which have been genuinely pursued for and on behalf of the applicant, albeit that the arguments have not been successful, I am satisfied that in taking into account the relevance of the denial and deprivation of a passport over a number of years to the applicant, that it is appropriate to exercise my discretion in relation to the issue of costs to the extent that I am able in favour of the applicant by making no order as to costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 21 March 2003