SZBOM v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1022

FEDERAL COURT OF AUSTRALIA

SZBOM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1022

SZBOM AND ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 492 of 2004

ALLSOP J
3 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 492 of 2004

BETWEEN:

SZBOM
FIRST APPLICANT

SZBON
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

3 AUGUST 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The notice of appeal filed 7 April 2004 be treated as an application for leave to appeal and for an extension of time in which to seek leave to appeal.

2.Such applications be dismissed.

3.Subject to order 4 below the question of costs be adjourned to a date to be fixed.

4.If the application to set aside orders made in the Federal Court by Mansfield J is not made by the applicants within 21 days of today, that is, by 24 August 2004, the respondent's costs of this application are to be paid by the applicants.

5.I direct that the file in relation to the previous proceedings in this court in respect of which orders were made by Mansfield J be transferred to the New South Wales District Registry and that the matter be dealt with from the New South Wales District Registry henceforth.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 492 of 2004

BETWEEN:

SZBOM
FIRST APPLICANT

SZBON
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	ALLSOP J
DATE:	3 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the applicants have filed a notice of appeal in respect of orders made by a Federal Magistrate summarily dismissing their application made under s 39B of the Judiciary Act 1903 (Cth). The Magistrate dealt with the matter summarily in the absence of the applicants, who did not appear. They have said before me that one or both of them was sick on the day but there is no evidence that the Magistrate was told that in advance.

2. In any event the matter was plainly one appropriate for summary dismissal given that the same application had been made in the High Court, remitted to the Federal Court and apparently dismissed by consent.  The applicants say that that dismissal by consent was made without their instructions.  There is an assertion on oath by the female applicant, the wife of the male applicant, that that is the case.

3. The Magistrate was incontestably correct in coming to the view on the material before him.  If the applicants wish, as they appear to, to agitate their complaints about the Refugee Review Tribunal hearing in judicial review proceedings that can only be done if the order of the Court is set aside.  Thus, in my view, even treating the notice of appeal as an application for leave to appeal, and as an application for extension of time in which to seek leave to appeal, such application should be dismissed.

4. The substance of the matter, however, is that the applicants appear to wish to set aside the orders of the Court made by consent in Adelaide.  The assertion that a solicitor of the Court consented to orders dismissing a suit brought by way of constitutional right is a serious one.  It is not to be made merely by way of assertion.  I have indicated to the applicants that they will need to file a notice of motion in the earlier proceedings supported by affidavits from both of them indicating the primary evidence of such instructions they gave and did not give about proceeding with the case.  I am satisfied that the assertions made by both in court and on affidavit are sufficiently inconsistent with legal professional privilege as to waive it at least in relation to the giving of instructions to proceed or not proceed with the suit.

5. If a notice of motion is filed with such supporting evidence the Court will then consider whether or not other parties should be ordered to attend Court to explain their conduct.  I should add that if there was an interposed migration agent or other intermediary assisting the applicants, their affidavits should deal with what transpired with any such person.  As I said, depending upon the contents of those affidavits, the Court may or may not require the attendance by order of other persons before the Court to explain their behaviour.

6. These matters are sufficiently potentially serious for me not to make an order for costs today but to adjourn the making of any order for costs to a date to be fixed.  There is no reason why the Minister should not have his costs of this current application, but given that the applicants are unrepresented and given that the Court may be informed of further facts that may touch upon the question of costs it may be fairer in all the circumstances to wait until certain other matters are clear before the precise terms of the order for costs are made.  My hesitation as to timing does not affect my view that ultimately whoever pays the costs, whether directly or indirectly, the Minister should be entitled to the costs of these proceedings.

7. The applicants should understand that the assertion they are making is a serious one.  If it be the case that they were represented at a hearing by counsel and solicitors who spoke to them about the disposition of the matter to assert to the contrary on oath if it not be truthful is itself a very serious matter.  The swearing of affidavits is as serious a matter as giving evidence in court under oath.  I will say no more about the underlying facts of which I am not presently aware.  The orders that I propose to make are as follows:

   1.The notice of appeal filed 7 April 2004 be treated as an application for leave to appeal and for an extension of time in which to seek leave to appeal.

   2.        Such applications be dismissed.

   3.        Subject to order 4 below the question of costs be adjourned to a date to be fixed.

   4.If the application to set aside orders made in the Federal Court by Mansfield J is not made by the applicants within 21 days of today, that is, by 24 August 2004, the respondent's costs of this application are to be paid by the applicants.

   5.I direct that the file in relation to the previous proceedings in this court in respect of which orders were made by Mansfield J be transferred to the New South Wales District Registry and that the matter be dealt with from the New South Wales District Registry henceforth.

8. They are the orders that I make. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             9 August 2004

The applicants appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	3 August 2004
Date of Judgment:	3 August 2004