Rahman v Dayeh

[2007] FMCA 98

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAHMAN v DAYEH & ORS [2007] FMCA 98

ADMINISTRATIVE LAW – Practice and procedure – discovery and subpoenas – applicant not entitled automatically – directions requiring draft subpoenas to be submitted – whether appropriate – whether raised apprehension of bias.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5
Federal Court Rules (Cth), O.27A(2), 54
Federal Magistrates Act 1999 (Cth), s.45
Federal Magistrates Court Rules 2001 (Cth), rr.1.06(2), 15.13(1), 15.15(1), Pts.10, 14

Carmody v Mackellar (1996) 68 FCR 265
Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55
Jilani v Wilhelm (2005) 148 FCR 255
Rahman v Dayeh [2006] FCA 1362

Applicant: MOHAMMAD TABIBAR RAHMAN

First Respondent: VANESSA DAYEH

Second Respondent: RICARDO ABUSAIL

Third Respondent: COMMONWEALTH OF AUSTRALIA

Fourth Respondent: SECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

File Number: SYG2994 of 2006

Judgment of: Smith FM

Hearing date: 25 January 2007

Delivered at: Sydney

Delivered on: 25 January 2007

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondents: Mr A Markus

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The applicant’s notice of motion filed on 21 December 2006 is dismissed. 

2. Paragraph 9 of the Orders made on 10 November 2006 is vacated. 

3. Any party has liberty before 31 January 2007 to notify the Court and the other parties that that party wishes to proceed with the appointment for mediation on 6 February 2007 at 10.15 am. 

4. All other orders made on 10 November 2006 are confirmed. 

5. The respondents’ costs in relation to the applicant’s motion and today’s attendance are their costs in the proceeding. 

6. The solicitor for the respondents must serve a copy of this order on the applicant before 5 pm on 29 January 2007. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2994 of 2006

MOHAMMAD TABIBAR RAHMAN

Applicant

And

VANESSA DAYEH

First Respondent

RICARDO ABUSAIL

Second Respondent

COMMONWEALTH OF AUSTRALIA

Third Respondent

SECRETARY, DEPARMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Fourth Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The substantive application in this matter was filed in the Federal Court on 23 August 2006 under O.54 of the Federal Court Rules, seeking relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”).  The application identifies a decision in relation to which judicial review is sought as: “Decision report by DIMA 16 August 2006”. 

2. From the application and documents attached to the applicant’s affidavit, the relevant “decision report” is a one‑page “Individual Assessment Report” prepared by a selection panel which assessed the applicant in relation to his application for employment made in response to an advertisement of “APS 4 Various Positions” in the Department of Immigration and Multicultural Affairs.  The panel assessed the applicant’s written employment application, and considered his performance in a written test and interview.  It reported a conclusion that “he is not suitable for duty at the APS 4 level” and gave reasons for this opinion.  

3. The application to the Court contains criticisms of the merits of the assessments set out in the report, and under the heading “The grounds of application” there are a series of contentions formulated by reference to the general heads of judicial review set out in s.5 of the AD(JR) Act. These contentions lack any particulars which would allow the Court to form a preliminary view on whether the application raises any issue of substance, or has any prospect of raising an arguable case for relief.

4. The application was listed before Gyles J for directions on 4 October 2006 and 11 October 2006.  On the latter occasion his Honour ordered that the matter be transferred to this Court (see Rahman v Dayeh [2006] FCA 1362).

5. The application was then listed before me for directions on 10 November 2006.  A transcript of what occurred on that day is available on the file.  In short, Mr Rahman appeared for himself.  I discussed with him and with the representative of the respondents a number of matters which ultimately found their way into directions which I formulated and gave to the parties.  My directions dealt with the joinder of additional parties, the filing of an amended application and additional evidence, a reference for mediation, and the listing of the matter for final hearing before me on 22 February 2007 at 10.15 am with an exchange of written submissions prior to the hearing. 

6. Early in the directions hearing, Mr Rahman indicated a wish to take out subpoenas going to “the whole process” of his job interview and the selection process.  It appeared to me that he saw the issuing of subpoenas as a process of discovery by the respondents which he considered he was entitled to insist upon. 

7. However, in this Court s.45 of the Federal Magistrates Act 1999 (Cth) provides:

   45  Interrogatories and discovery 

   (1)Interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery. 

   (2)In deciding whether to make a declaration under subsection (1), the Federal Magistrates Court or a Federal Magistrate must have regard to: 

   (a)whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and

   (b)such other matters (if any) as the Federal Magistrates Court or the Federal Magistrate considers relevant. 

8. Part 14 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) contains rules in relation to the making of a declaration under s.45 and the giving of discovery in accordance with any order of the Court.

9. In relation to discovery by way of subpoenas, the Rules provide in r.15.13(1):

   (1)The Court or a Registrar may, on the Court’s or the Registrar’s own initiative or at the request of a party, issue: 

   (a)a subpoena for production; or

   (b)a subpoena to give evidence; or

   (c)a subpoena for production and to give evidence. 

10. Rule 15.15(1) provides: 

    (1) Unless the Court directs otherwise, a party must not request the issue of more than 5 subpoenas in a proceeding. 

11. These rules leave some ambiguity as to whether a party may insist that the Registrar must issue five subpoenas if so requested, regardless of the appropriateness of the draft subpoenas which are presented. This is a matter which is currently before the Rules Committee of this Court. I note that in the Federal Court O.27A(2) makes it clear that “a subpoena must not be issued without the leave of the Court or a Judge”. In my opinion, it would be desirable that this could also be clearly stated in our Rules, at least in relation to some classes of proceedings in the Court’s General Federal Law jurisdictions.

12. There is a body of authority which holds that discovery in judicial review proceedings is not automatic, and I consider that it should be followed in this Court when exercising powers in relation to discovery or subpoenas proposed to be issued against respondents.  The principles by which orders by way of discovery are made were summarised by Merkel J in Carmody v Mackellar (1996) 68 FCR 265 at 280 in a manner which has been approved in several Full Court cases, including Jilani v Wilhelm (2005) 148 FCR 255 at 273. One of his Honour’s propositions is:

    If there is not the slightest evidence or there is no other material to support the bare allegations made in the proceeding, then as a general rule, an order for discovery ought not to be made. 

13. The Full Court in Jilani also cited authority for the propositions: 

    … it is not open to an applicant to make a bare allegation that a decision was made without any basis and then use the process of discovery to find out if the allegation has foundation. 

    There must be sufficient definition of the issues to enable the Court to see that the documents sought on discovery relate to a live issue; there must at least be something from which the Court can see that there is a real issue the proof of which would be assisted by discovery. 

14. Bearing in mind such principles, at the first directions hearing in this matter I attempted to dissuade Mr Rahman from his belief that he had an unlimited entitlement to subpoena documents from the respondents.  I also considered that it would be desirable to allow Mr Rahman to consider whether he wished to amend his application and present further evidence, and whether the respondent would present relevant documents to the Court in its evidence, before considering whether Mr Rahman should be permitted to obtain discovery through the Court’s processes. 

15. I therefore included these specific directions in my orders: 

    7.No subpoenas are to be issued without the prior leave of the Court. 

    8.The proceeding is listed for directions on 25 January 2007 at 11am for the purpose of considering any application for the issue of subpoenas.  Two days prior to that date, the applicant is to file and serve copies of the subpoenas which he seeks leave to issue. 

16. Before making these orders, I discussed the matter with Mr Rahman, and sought to explain my reasons. As the transcript shows, Mr Rahman sought to rely upon r.15.15, and to argue that I did not have power to modify its effect. However, I considered that I had power to modify its effect under my powers of direction in Part 10 and by reference to r.1.06(2), which provides:

    1.06  Court may dispense with rules 

    (1)… 

    (2)If, in a proceeding, the Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.

17. I have today reconsidered Mr Rahman’s entitlements to obtain the issue of subpoenas, and remain firmly of the opinion that it was within my powers, and was appropriate for the proper case management of this matter, for me to make orders 7 and 8 set out above.  

18. Mr Rahman has not filed and served any draft subpoenas in accordance with order 8 and did not seek to do that today. 

19. Instead, he filed a notice of motion on 21 December 2006, which was made returnable for today.  It seeks that I disqualify myself as docket judge.  The motion is a five‑page document which I shall not extract.  It reveals Mr Rahman’s disagreement with orders 7 and 8 in my previous orders, and repeats contentions that he is entitled to obtain the issue of subpoenas against the respondents.  His motion seeks the setting aside of those orders, and also other directions and the vacating of the hearing date. 

20. Mr Rahman appeared when the matter was called today, and maintained his application that I should disqualify myself.  I invited Mr Rahman to elaborate his arguments for my disqualification, but he declined to make any submissions to me.  I indicated that I would not disqualify myself.  At that point Mr Rahman expressed his continuing lack of confidence in me, and left the courtroom without waiting to hear my reasons for declining to disqualify myself. 

21. The ground stated in the notice of motion is that he has “no confidence” in my continuing to constitute the Court in the matter.  This unparticularised state of mind in a litigant cannot, of itself, provide a reason why I should disqualify myself, but I have considered whether his lack of confidence might be based on any matter which would provide grounds for disqualification under doctrines of apprehended bias.  The principles in relation to such disqualification were recently applied by the High Court in Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55 in the judgments of Kirby and Crennan JJ from [110] and Callinan J from [171]. The issue I should consider is whether “a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. 

22. Mr Rahman’s notice of motion did not give clear particulars of any action or conduct which he relied upon as raising such a reasonable apprehension, other than his disagreement with paragraphs 7 and 8 in my previous directions.  However, I have read the transcript from the last occasion, and do not think that anything was said by me which might cause the relevant apprehension.  Nor do I consider that my inclusion of paragraphs 7 and 8 in the orders of the Court might give rise to such apprehension.  I consider that a relevantly informed lay observer would understand the legal and case management reasons for making those directions.  On their face they did not shut the door against Mr Rahman being allowed discovery or subpoenas if he were able to show me, at the interlocutory hearing which was appointed for today, the form and content of discovery which he sought. 

23. Mr Rahman was afforded a full opportunity to show me today how the Court’s processes could appropriately be ordered in the interest of the administration of justice in his application, and in accordance with principles set out in the authorities which I have referred to above.  He declined to take up that opportunity at today’s hearing.  

24. Even if I was in error in my reasons for making directions 7 and 8, I do not consider that such error might cause an apprehension as to my impartiality when ultimately addressing the issues required to be determined in this matter in the future, whether procedural or substantive. 

25. As I indicated to Mr Rahman after I declined to disqualify myself, the application will remain listed for final hearing on 22 February 2007 at 10.15 am.  I have warned Mr Rahman that if he is not in attendance the application may be dismissed due to his absence.  

26. Counsel for the respondents submits that, in the light of Mr Rahman’s state of mind revealed today in relation to the proceedings, there would be no purpose in continuing with the appointment for mediation by a Registrar which has been made for 6 February 2007.  I tend to agree with him in that respect, but shall make orders which will allow Mr Rahman to reflect upon whether he wishes to proceed with the appointed mediation.  

27. I consider that my directions made on 10 November 2006 otherwise remain appropriate.  

28. The respondents have not sought a special award of costs in relation to today’s listing, and I consider that their costs should be costs in the matter. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  6 February 2007