Singh v Minister for Immigration
[2017] FCCA 223
•21 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 223 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Applicants failed to make disclosure to the Court under s.486D(1) – oral disclosure to Registrar of the Court not made and would be ineffective anyway – Application struck out as incompetent. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.8, 99, 112 Judiciary Act 1903 (Cth), s.34 Migration Act 1958 (Cth), ss.351, 476, 477, 478, 486D Public Service Act 1999 (Cth) |
| Cases cited: AQQ16 v Minister for Immigration and Border Protection [2016] FCCA 2736 McKinnon v Commonwealth Bank of Australia [2006] FCAFC 10 McShane v Gippsland & East Gippsland Aboriginal Cooperative Limited [2002] FCA 1591 Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174 Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 |
| First Applicant: | PRABHJOT SINGH |
| Second Applicant: | HARPREET KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1256 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 2 February 2017 |
| Date of Last Submission: | 6 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2017 |
REPRESENTATION
| The Applicants appeared in person. |
| Counsel for the Respondents: | Mr M Glavac. |
| Solicitors for the Respondents: | Clayton Utz. |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The affidavit of Ms Esther Louise Dwyer sworn on 7 July 2016 is marked Exhibit “A”.
The affidavit of the First Applicant affirmed on 19 May 2016 is marked Exhibit “B”.
The affidavit of the First Applicant affirmed on 14 July 2016 is marked Exhibit “C”.
The affidavit of the First Applicant affirmed on 13 October 2016 is marked Exhibit “D”.
The First Respondent’s Outlines of Submissions respectively filed on 7 July 2016, 18 January 2017 and 30 January 2017 are collectively marked “MFI 1”.
The Applicants’ Outlines of Submissions respectively filed on 9 September 2016 and 19 January 2017 are collectively marked “MFI 2”.
The email of Mr Zac Chami to the Applicants sent on 7 July 2016 is marked Exhibit “E”.
The Application filed in this Court on 19 May 2016 is struck out as incompetent.
The Applicants are to pay the First Respondent’s costs of the proceeding.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1256 of 2016
| PRABHJOT SINGH |
First Applicant
| HARPREET KAUR |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first applicant is a male citizen of India aged 29 years, having been born on 22 October 1987.
The second applicant is a female citizen of India aged 30 years, having been born on 15 September 1986 and is the wife of the first applicant.
(and collectively the Applicants)
Background
On 7 October 2011 the Applicants applied for a Skilled (Residence) (Class VB) visa (Skilled visa) with the First Applicant as the primary applicant and the Second Applicant as the secondary applicant.
A Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) by a decision dated 8 July 2013 refused to grant the Applicants a Skilled visa on the basis that the First Applicant did not have the required English language proficiency.
The Applicants applied to the Administrative Appeals Tribunal (Tribunal) (at the time of application the Migration Review Tribunal) on 19 July 2013 for a merits review of the Delegate’s decision but by the Tribunal’s decision dated 2 December 2013 (Tribunal decision) it affirmed the Delegate’s decision, likewise finding that the First Applicant did not have competent English at the time of the Skilled visa application.
However, the Tribunal was of the view that it was appropriate to request the Minister to consider substituting for its decision a decision by him more favourable to the Applicants under s.351 of the Migration Act 1958 (Cth) (the Act) on the basis that the application of the Act had led to an unfair or unreasonable result.
On 3 January 2014 the Applicants, then resident in Victoria, by an application on an approved form filed in the Victorian Registry of this Court (First Application) sought to have the Tribunal’s decision quashed and the Skilled visa application remitted for redetermination.
On 1 April 2014 the First Application was set down for final hearing before his Honour Judge Riethmuller on 23 September 2014.
However, by a Notice of Discontinuance filed on 28 August 2014 the Applicants discontinued the First Application on the basis of their migration agent’s advice to do so, grounded on the well-known practice of the Minister not to make a decision under s.351 of the Act whilst there was any proceeding pending in a Court in relation to the impugned Tribunal decision.
The Applicants claimed that by letter dated 10 March 2016 they were advised that the Minister had personally considered their case and had decided not to intervene and not to substitute any more favourable decision for them under s.351. It was in those circumstances that on 19 May 2016 the Applicants, still resident in Victoria, by an application filed on an approved form in this Court in its Sydney Registry (Second Application) sought to quash and have redetermined the Tribunal decision.
This Second Application was not filed within the thirty-five days required by s.477(1) of the Act, but rather nearly three years after the Tribunal decision and so the Applicants would need to establish that it is necessary in the interests of the administration of justice for this Court to extend the thirty-five day period under s.477(2) of the Act.
Section 486D of the Act
This section of the Act requires that a person must not commence a proceeding in this Court, the Federal Court of Australia or the High Court of Australia in relation to a Tribunal decision unless the Applicant, in commencing the relevant proceeding, discloses to the Court any relevant previous or pending judicial review proceeding. Relevantly to this Court, s.486D(1) states as follows:
(1)A person must not commence a proceeding in the Federal Circuit Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
In the Explanatory Memorandum to the Migration Litigation Reform Bill 2005 (Cth) which, when enacted, inserted s.486D into the Act, the purpose of this provision was explained as follows:
51.This item inserts a new section 486D to require applicants, when commencing any proceeding in the FMC, Federal Court or High Court in relation to a tribunal decision (as defined in subsection 486D(5)) to disclose details of any previous application for judicial review in any court in relation to that decision. The provision is designed to assist the courts to identify applications which have already been the subject of proceedings for judicial review of tribunal decisions and discourage applicants from attempting to re‑litigate these matters, including as a means to delay their removal from Australia.
52.Subclause 486D(5) inserts definitions of ‘judicial review proceeding’ and ‘tribunal decision’ for the purposes of this section. The expression ‘judicial review proceeding’ means an application for judicial review of a tribunal decision. A tribunal decision means a privative clause decision, or purported privative clause decision, made on review by a tribunal under Part 5 or 7 or section 500 of the Migration Act.
In this Court, Part 44 of the Federal Circuit Court Rules 2001 (Cth) (the Rules) deals with proceedings commenced pursuant to the Court’s jurisdiction under s.476 of the Act. Rules 44.05 and 44.06 are in the following terms:
DIVISION 44.2 Matters Commenced in the Court
…
44.05 Application for order to show cause
(1) An application for a remedy to be granted in exercise of the Court's jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b)any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought – the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension
44.06 Response to application
(1) Each respondent who intends to oppose an application must file and serve a response, including each ground on which the respondent opposes the application and details of each ground.
(2)For subrule (1), the grounds on which a respondent may oppose an application include the following:
(a) that the Court lacks jurisdiction to hear the application;
(b) delay in seeking the remedy;
(c) that there are, or have been, other judicial review proceedings in relation to the decision;
(d) that the applicant has not complied with subsection 486D(1) of the Migration Act.
Note:Rules 4.03 and 4.05 include requirements relating to responses.
[emphasis added.]
It will be observed that these two rules first require that an application to the Court under s.476 be made on an approved form and second, permit that grounds of opposition by the Minister based on relevant previous or pending judicial review proceedings be articulated in a response (which under r.4.03(3) of the Rules “must be filed and served within 14 days of service of the application to which it relates”).
Each of the approved forms comprising the First Application and the Second Application contained the following section, to facilitate compliance with the requirements of s.486D and which was to be completed by the Applicants:
“Other Court Proceedings (Complete if the applicant has made a previous application or applications to a court to review the decision – see section 486D of the Migration Act 1958.)
[emphasis added.]
Person or persons who made
each previous application: …..………………………………………..
Court or courts to which
each application was made: …………………………………….…..
Commencement date of each
previous application or applications: ……………………………..
File number of each application: …………………………………..
Outcome of each application:………. ……………………………. ”
(the s.486D Disclosure Section)
In their First Application the Applicants correctly answered the s.486D Disclosure Section in the negative, but in their Second Application they left it blank and made no answer. In other words, on the approved form by which they made their Second Application they made no reference, as required by s.486D of the Act, to their First Application.
Further, the fifth Ground of the Second Application stated as follows:-
5.MRT had directly referred our case to the Minister for Immigration and Border Protection. This was MRT’s decision to forward our application to the Minister under certain guidelines. If MRT had not referred our case to the Minister, we would have taken another pathway like lodging an application with the Federal Court.
As a result of the Applicants’ failure to complete the s.486D Disclosure Section, the Minister’s legal representatives on the first return date of the Second Application on 10 June 2016 were not aware of the First Application and accordingly conventional orders to prepare the matter for hearing were then made and the final hearing of the Second Application was appointed for 15 June 2017.
However, by at least 4 July 2016 the Minster had become aware of the First Application and on that date filed an Amended Response in which a ground of opposition was added to the effect that the Applicants had not complied with s.486D(1) of the Act, because their Second Application had failed to disclose that they had previously made the First Application, which they had discontinued, and that therefore the Second Application was incompetent.
Then on 7 July 2016 the Minister filed an affidavit of Ms Esther Louise Dwyer which contained relevant evidence relating to the First Application, together with an Outline of Submissions in relation to the incompetency of the Second Application. The Amended Response, the affidavit of Ms Dwyer and the Outline of Submissions were also served on the Applicants by email on 7 July 2016.
On 19 August 2016 the Minister filed an Application in a Case whereby he sought dismissal of the Second Application for failure to comply with s.486D of the Act. The parties agreed and I considered it appropriate that this Application in a Case, based on the claim of incompetency, be dealt with antecedent to and apart from any hearing of the Applicants’ application for extension of time and their substantive application for judicial review. This judgment deals with and determines that Application in a Case.
Hearing
At the hearing, the Applicants appeared in person and addressed the Court in fluent English and indicated that they had no need for an interpreter. Their evidence relevant to the Application in a Case was given through the affidavit of the First Applicant affirmed on 13 October 2016 which in substance stated as follows:-
(a)The First Application was discontinued on 28 August 2014 on the advice of legal migration advisers so that the Minister could consider intervention into their case;
(b)On 10 March 2016 the Minister advised that he would not intervene in their case;
(c)On 19 May 2016 the Second Application was filed in this Court;
(d)On 7 July 2016 the Minister filed an Outline of Submissions and the affidavit of Ms Dwyer to declare the application incompetent because of s.486D of the Act;
(e)At the time the First Applicant lodged the Second Application he saw Ms Shanthini Rathanthas at the lodgement counter of the Court Registry. She held the position of Senior Coordinator (that is to say, a Senior Coordinator of the Federal Court of Australia and Federal Circuit Court of Australia). When Ms Rathanthas started lodging the Second Application, she asked the First Applicant if he had before lodged a federal court application concerning this matter and he answered in the affirmative to her;
(f)Ms Rathanthas then further asked when and where it was lodged and then the First Applicant answered all her questions and that he had lodged in Melbourne in 2013;
(g)The First Applicant was not even aware of the meaning of the s.486D Disclosure Section and it was left blank in the Second Application so that it could be filled up with correct information. He intended to ask the person lodging the application what to write in that section: see [16] of the affidavit;
(h)However the First Applicant forgot to ask what to write in the s.486D Disclosure Section in the Second Application; and
(i)The First Applicant denied that he ever had intended to hide about the First Application in the Second Application.
Consideration
Incompetency
It is the first duty of a Court to be satisfied of its jurisdiction, which is its public authority to adjudicate: Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174 at 183 [32] per Allsop CJ, Katzmann and Gleeson JJ.
By his Application in a Case the Minister submits that the Second Application should be dismissed as incompetent. To say that a legal proceeding is incompetent is to say that the matter simply cannot proceed because the law does not allow it to: McKinnon v Commonwealth Bank of Australia [2006] FCAFC 10 at [6] per Black CJ, Stone and Young JJ. In the circumstances of this case, a finding of the incompetency of the Second Application would mean that the Applicants did not have a right or entitlement to bring the Second Application because of a breach of s.486D(1) of the Act and consequently the Court had no right or jurisdiction to entertain, hear and determine it because it lacked the authority to deal with it.
Meaning and Effect of s.486D(1) of the Act
The meaning and effect of s.486D does not seem to have been the subject of any decision in the Federal Court or the High Court of Australia.
However, there is a uniform body of authority in this Court (and its predecessor, the Federal Magistrates Court) to the effect that the disclosure required by s.486D(1) is a valid statutory requirement which conditions jurisdiction and that a failure to make the required disclosure means that this Court does not have jurisdiction and the relevant application is therefore incompetent. Those authorities include S354 of 2003 v Minister for Immigration and Multicultural Affairs (No. 2) [2006] FMCA 1929; SZLHJ v Minister for Immigration and Citizenship [2007] FMCA 1947; SZKUT v Minister for Immigration and Citizenship [2008] FMCA 241; MZXPI v Minister for Immigration and Citizenship [2008] FMCA 1296; Avaiya v Minister for Immigration and Border Protection [2014] FCCA 268; Joshi v Minister for Immigration and Border Protection (2016) 311 FLR 505 and AQQ16 v Minister for Immigration and Border Protection [2016] FCCA 2736.
I should follow this uniform stream of decisions. Rather than considering them plainly wrong, I consider them to be correct.
The prefatory words of sub-sections (1), (2) and (3) of s.486D, being “a person must not commence a proceeding”, are in emphatic and imperative terms. In Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 Merkel J said, in connection with the time provision then appearing in s.478 of the Act, under a different time regime which required that applications under the then operative s.476 and s.477, “must…be lodged with the Registry of the Federal Court within 28 days”, that such a time limit had to be given a literal construction. His Honour said at 391:
In my view the use of the word “must” in s.478(1)(b) and (2), in relation to the 28 day time limit, is not merely directory but “is a word of absolute obligation”: see Posner v. Collector for Inter- State Destitute Persons (Vic) (1947) 74 CLR 461 at 490 per Williams J and Kosovich v. Mancini (1982) 31 SASR 272 at 275- 276 per Millhouse J. Such an interpretation also accords with the principle that enactments requiring that a specified procedure be followed in courts are usually mandatory and not merely directory: see D C Pearce and R S Geddes, Statutory Interpretation in Australia (4th ed, 1996) p 278 and Public Prosecutor v. Oie Hee Koi [1968] AC 829 at 852. Long and the unreported decisions of the Court, to which I have referred to in relation to ss.412 and 478 have all regarded the time limit as mandatory.
Accordingly, the Court has no jurisdiction to review a decision which is reviewable under ss.475 and 476 unless the application for review is lodged within 28 days of the applicant being “notified” of the decision as enunciated in Long.
Further support for the view that disclosure under s.486D is strictly required can be found in the decision of the Full Court of the Federal Court in SZICV v Minister for Immigration and Citizenship (2007) 158 FCR 260. That case established that the time limit mandated by s.477(1) restricted this Court’s jurisdiction in migration matters under s.476 and was strict, effective and an essential part of the grant of jurisdiction to this Court. Section 486D of the Act has a similar restrictive effect.
By way of final analogous example, the prefatory language of s.486D(1) is similar to that of s.34(2) of the Judiciary Act 1903 (Cth) which provides that:
(2)An appeal shall not be brought without the leave of the High Court from an interlocutory judgment of a Justice or Justices exercising the original jurisdiction of the High Court whether in Court or Chambers.
In Re Luck (2003) 203 ALR 1 the High Court comprised of McHugh ACJ, Gummow and Heydon JJ took it as self-evident that a purported “appeal” from a single justice of the High Court which was brought without leave was incompetent.
In my view, compliance with the disclosure requirements of s.486D(1) is a condition and prerequisite to the valid filing and legal effectiveness of an application to this Court under s.476.
Did the Applicants Make Disclosure as Required by s.486D(1)?
At this point I note that the Second Applicant has not given any evidence relating to the conversation with Ms Rathanthas asserted by her husband. Perhaps this is because although she signed the Second Application, she may not have been present at the Court Registry when it was lodged on 19 May 2016. In any event, I should state that I draw no adverse inference against the Applicants in failing to lead evidence from the Second Applicant or against either party in failing to lead evidence from Ms Rathanthas. This is because it is generally invidious for Registry officers to give evidence in contested litigation. There is the authority of Judge Hamilton in the District Court of New South Wales in Newsam v Archibald (1920) 38 WN (NSW) 2 to the effect that it is improper for an officer of the Court to take the side of any party in proceedings before the Court. Rather, if the Court requires any information, it can call for a report from the relevant Registrar or Registry officer.
For the reasons below, I do not accept that the Applicants made disclosure to the Court for the purposes of s.486D(1). I do not accept the evidence of the First Applicant that he made disclosure to the Court through the agency of Ms Rathanthas, even assuming for present purposes that oral disclosure could be validly made.
Prior to cross-examination of the First Applicant at the hearing I was of the tentative view that the evidence given by the First Applicant in his affidavit of 13 October 2016 on its face suffered from a degree of implausibility and improbability. The s.486D Disclosure Section on the First Application had been truthfully answered with an unequivocal negative. However, the First Applicant was now asserting that he was not even aware of the meaning of the s.486D Disclosure Section and that he had left it blank in the Second Application so that he could fill it out after he had spoken to a Registry official.
On his version of events he had spoken to a Registry officer, namely Ms Rathanthas, and orally disclosed the First Application to her. After discussion on this topic, he then forgot to fill out the s.486D Disclosure Section in the Second Application. Further, the second sentence of the fifth Ground of the Second Application (extracted at [18] above) had at the very least a tendency to suggest to the reader that there had been no previous application in a Court with respect to the Tribunal decision.
Nevertheless, in the result the cross-examination of the First Applicant, conducted by Mr Glavac who appeared for the Minister at the hearing, completely undermined the Applicants’ case with respect to the alleged disclosure to the Court on 19 May 2016 via the conversation with Ms Rathanthas.
In short, the result of that cross-examination was as follows:
(a) The First Applicant admitted that at the time he completed the s.486D Disclosure Section in the First Application, he understood what that part of the form was asking him;
(b) The First Applicant admitted that at the time he came to complete the Second Application, he understood what the s.486D Disclosure Section was asking him;
(c) The First Applicant admitted that his evidence in [16] of his affidavit of 13 October 2016, to the effect that he was not even aware of what the s.486D Disclosure Section meant, was false;
(d) The First Applicant admitted that the first time he had made any disclosure in these proceedings of the previous Court proceeding initiated by the First Application was after 5 July 2016, when he became aware that the Minister knew of that proceeding; and
(e) The First Applicant admitted that he had taken no steps to disclose the prior proceeding initiated by the First Application until he had found out that the Minister was aware of the First Application when the affidavit of Ms Dwyer was served on the Applicants.
Accordingly, in these circumstances I do not accept the evidence led on behalf of the Applicants that at the time of the filing of the Second Application there was any discussion with Ms Rathanthas in which the First Applicant disclosed or mentioned the First Application. I am satisfied that there was no disclosure to the Court by the Applicants as required by s.486D(1) and that the Second Application is incompetent and ought to be struck out.
Is Oral Disclosure for the Purposes of s.486D Valid and Effective?
I consider that it is appropriate that I should deal briefly with this issue because the Applicants in their Outline of Submissions filed on 19 January 2017 expressly submitted that oral disclosure could be validly made by disclosure to a Court Registry officer and that this proposition was supported by the decision of Judge Nicholls in Joshi v Minister for Immigration (2016) 311 FLR 505 (Joshi) where at [22] his Honour said as follows:-
The section requires disclosure to a Court when commencing proceedings. In my view, that disclosure may be made elsewhere in the application form, in any accompanying affidavit, or notice, or indeed in any other way so long as the disclosure is made “when commencing the proceeding”.
I do not consider that Judge Nicholls in the above paragraph was supporting the view that oral disclosure could be made for the purposes of s.486D. His Honour’s statement, in accordance with the secundum subjectam materiam rule of construction, has to be read and understood in the context of its subject matter. In Joshi Judge Nicholls was not considering an asserted oral disclosure under s.486D and in my view his Honour did not have in mind the issue of whether valid disclosure for the purposes of s.486D(1) could be made orally, let alone orally to a Court Registry officer.
Further, I do not consider that a Court Registry officer can comprise the “Federal Circuit Court” as referred to in s.486D(1). Rather, s.8(4) of the Federal Circuit Court of Australia Act 1999 (Cth) (the FCCA Act) provides that the Federal Circuit Court of Australia consists of the Chief Judge and such other Judges as from time to time hold office.
The FCCA Act provides for the appointment of certain persons to be officers of the Federal Circuit Court, including pursuant to s.99(1)(a) “such Registrars as are necessary”, and s.112 of the FCCA Act provides for the appointment of “such staff of the Federal Circuit Court of Australia as are necessary”, consisting of “persons engaged under the Public Service Act 1999 (Cth).” Registrars and Registry officers usually perform administrative or clerical functions rather than acting as judicial officers. Certainly, Registry staff are not general agents for the Court and have no actual authority to receive oral notice so as to comply with statutory requirements such as those found in s.486D. The role of Registry officials is a limited one. As Ryan J said in McShane v Gippsland & East Gippsland Aboriginal Cooperative Limited [2002] FCA 1591 at [9]:
However, it is not the function of Registry staff to scrutinise every initiating document to ensure that it properly invokes the jurisdiction of the Court. Still less can Registry officers be expected to redirect persons filing such documents to the correct forum or otherwise furnish legal advice to unrepresented applicants.
Further, the Federal Court website’s information page on Registry services (which are shared with the Federal Circuit Court) relevantly informs the public of the limited role of Registry officers as follows:
What we can do
·We can briefly explain and answer questions about how the Court works, its practices and procedures.
·We can tell you what forms you may need to use.
·We can give you blank copies of Court forms. These are also available on the Forms section of this website.
·We can check your forms and other court papers for completeness (for example, we check for signatures, and that attachments are present and signed by an authorised person within your State or Territory).
…
·We can provide you with all of the above services in relation to the Federal Circuit Court of Australia (previously the Federal Magistrates Court) except for family law matters.
What we can’t do
·We cannot give you legal advice.
·We cannot tell you whether or not you should bring your case to Court. We strongly advise you to seek legal advice before commencing a proceeding or appearing as an unrepresented respondent in a proceeding brought by someone else.
…
·We cannot tell you what words to use in your court papers such as forms and affidavits.
·We cannot tell you whether you have included enough information in your court papers.
Your responsibilities
·While registry staff can check your forms and other court papers for completeness (for example, we check for signatures, and that attachments are present and signed by an authorised person within your State or Territory), it is ultimately your responsibility to ensure that your forms and court papers comply with the Court rules and practice.
…
[emphasis added.]
In my view, Ms Rathanthas had no actual, apparent, ostensible or implied authority to accept or receive oral disclosure under s.486D(1) on behalf of the Court. The disclosure required pursuant to s.486D(1) was facilitated and intended to be made in the s.486D Disclosure Section on the approved form of application for applications under s.476 of the Act.
I accept that it is also probable that disclosure under s.486D(1) could be made by an affidavit giving proper and sufficient particulars of the relevant earlier proceeding or even a formal letter addressed to the Court, both at the time of commencement of the relevant proceeding. However, in my view oral disclosure would almost never be sufficient and particularly mere oral disclosure made to a Registry officer at the time of filing the application. Oral disclosure of such a kind would not provide the certainty and indisputability of disclosure which s.486D upon its proper construction requires.
Conclusion
The Application filed in this Court on 19 May 2016 ought to be struck out as incompetent and I will make an order to that effect.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 21 February 2016
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