SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1284

FEDERAL COURT OF AUSTRALIA

SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1284

SZDCJ V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1241 of 2004

JACOBSON J
29 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1241 OF 2004

BETWEEN:	SZDCJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	29 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave to appeal be granted.

2.Leave to appeal is limited to the following questions:

i.Whether the magistrate was obliged within the principles stated by the High Court in Public Service Board v Osborne (1985-1986) 159 CLR 656 to give written reasons for the orders made on 26 July 2004;

ii.Whether the transcript of the hearing of 26 July 2004 sufficiently constitutes reasons within that principle; 

iii.Whether the magistrate was in error in dismissing the application for review pursuant to Part 13 Rule 13.10(c) of the Federal Magistrates Court Rules on the ground that the proceedings were an abuse of process;

iv.Whether any error of principle is disclosed in accordance with House v The King (1936) 55 CLR 499 in the order dismissing the application pursuant to Part 13 Rule 13.032(b) on the ground that the applicant had failed to file and serve an amended application giving complete particulars of the ground of review; and

v.Whether the magistrate had power to make order 2, namely that no further application to review the decision of the RRT be accepted for filing except with the leave of the court.

3.The appeal is to be expedited. 

4.The applicant is to file and serve a notice of appeal identifying the grounds of appeal in terms of the issues contained in order 2 above.

5.In the event that the applicant wishes to raise any additional ground of appeal, that a notice of appeal identifying the error, including any jurisdictional error relied upon, be clearly identified and that such notice be filed by Wednesday, 20 October 2004.

6.The index to appeal papers be settled before a registrar on Thursday, 21 October 2004.

7.If the appeal is to be heard by a single judge, it is to be heard by Jacobson J during the week of 8 November 2004 with the parties to be notified of the date of the hearing. 

8.In the event that the matter is to be heard by a Full Court, appropriate steps are to be taken for the matter to be heard in the Full Court sittings during the period 1 to 19 November 2004, with a time estimate of half a day.

9.The applicant is to file and serve written submissions in support of the appeal seven (7) clear days before the date of hearing; and

10.The respondent to file and serve written submissions two (2) clear days before the date appointed for the hearing.

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 1241 OF 2004

BETWEEN:	SZDCJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	29 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal against orders made by a Federal Magistrate on 26 July 2004. On that date the learned magistrate made an order dismissing an application for review of a decision of the Refugee Review Tribunal on two separate bases. The first was pursuant to Part 13 Rule 13.10(c) of the Federal Magistrate Court's Rules, that the proceedings are an abuse of process. The second was pursuant to Part 13 Rule 13.03(2)(b) that the applicant had failed to comply with an order of the court requiring her to file and serve an amended application giving complete particulars of each ground of review.

2. The magistrate also ordered, in order 2, that no further application by the applicant to review the decision of the RRT dated 10 November 2000 be accepted for filing except with the leave of the court.

3. No written reasons were supplied by the magistrate but the magistrate's associate provided a proofed copy of the transcript.  I have read the transcript and have been taken to parts of it by Mr White, who appears for the Minister.  He directed me to page 5 of the transcript in which the magistrate said that it was an abuse of process because the case had been heard before.  However, it is not clear to me from what appears in the transcript that the reasons and the factual matters which underlie those reasons are set out.

4. The High Court said in Public Service Board of New South Wales v Osmond (1985-1986) 159 CLR 656 (“Public Service Board v Osborne”) at 666 to 667 per Gibbs CJ, that whilst it is not a rule that a judicial officer must give reasons in every case, reasons ought to be given in a case in which an appeal lies from the decision. It seems to me that the absence of reasons puts me in a position on application for leave to appeal that I cannot satisfactorily determine the prospects of success of an appeal and that in those circumstances it is appropriate that leave be granted.

5. However, in my view, leave should be granted only on a limited basis.  I say this for two reasons, firstly, it appears from the transcript that counsel who represented the applicant before the learned magistrate asked the magistrate to make orders merely dismissing the proceedings without including in the terms of the order that the dismissal was on the ground of an abuse of process.  Counsel also opposed the making of order 2, providing that the applicant not file any further application without the leave of the court.

6. It follows that the questions which would arise on an appeal appear on the present material to be limited to the question of whether the magistrate was correct in dismissing the proceedings on the ground of abuse of process or on the ground of failure to comply with the orders.  An issue also arises in my view, as to the magistrate's power to make order 2, this is particularly so where reasons are not available.

7. Although the applicant filed an affidavit in support of her application for leave to appeal she did not file a draft notice of appeal.  Nothing in the affidavit disclosed any properly arguable ground of error on the part of the magistrate or suggested any possible jurisdictional error on the part of the RRT.  Thus, in its present state the issues to be determined on appeal are in effect, academic, because there does not seem to be any basis for finding that the decision of the RRT ought to be disturbed. 

8. The position in which this matter comes before me is, as Mr White acknowledged, unfortunate.  The effect of the transcript is that a proposal was made by the magistrate that the parties consent to a dismissal of the application for review.  Mr White would not agree to that course and his Honour was therefore not able to make consent orders.  For the reasons which I have given, I think that leave to appeal ought to be granted but I will limit the questions to be determined on appeal to the issues which I have identified today.  If the applicant wishes to raise any other ground, it will be necessary for her to file an amended notice of appeal identifying any error of law or jurisdictional error to be relied upon on the hearing of the appeal.

9. The applicant informed me that she will be represented by counsel on the hearing of the appeal and she told me that Mr Brezniak of counsel who appeared before the Federal Magistrate would represent her on the hearing.  I can therefore proceed upon the basis that the legal issues which will be posed by the questions which I will identify will be adequately addressed and dealt with in written submissions and oral argument in the ordinary way.

10. It seems to me that the questions which arise to be determined on an appeal are as follows:

    i.Whether the magistrate was obliged within the principles stated by the High Court in Public Service Board v Osborne to give written reasons for the orders made on 26 July 2004; 

    ii.Whether the transcript of the hearing of 26 July 2004 sufficiently constitutes reasons within that principle; 

    iii.Whether the magistrate was in error in dismissing the application for review pursuant to Part 13 Rule 13.10(c) of the Federal Magistrates Court Rules on the ground that the proceedings were an abuse of process;

    iv.Whether any error of principle is disclosed in accordance with House v The King (1936) 55 CLR 499 in the order dismissing the application pursuant to Part 13 Rule 13.032(b) on the ground that the applicant had failed to file and serve an amended application giving complete particulars of the ground of review; and

    v.Whether the magistrate had power to make order 2, namely that no further application to review the decision of the RRT be accepted for filing except with the leave of the court.

11. I should add that with respect to the last ground, I raised this matter with Mr White today.  He did not anticipate that it might be a ground of appeal but it does seem to me to arise from the fact that the applicant wishes to appeal against the learned magistrate's orders.  Mr White submitted that the court has inherent jurisdiction to make such orders regulating its own practice and procedure.  Nonetheless, I cannot be satisfied on the brief argument today, no authority having been cited, that the question is to be answered in the terms put by Mr White.  The matter seems to be one which is appropriate for determination on the hearing of the appeal.

12. I will make directions for the appeal to be dealt with expeditiously because the applicant is in detention.  Accordingly, I will grant leave to appeal in the terms that I have stated.  I will direct the applicant to file and serve a notice of appeal identifying the grounds of appeal in terms of the issues which I have posed for consideration.

13. I direct that in the event that the applicant wishes to raise any additional ground of appeal, a notice of appeal identifying the error, including any jurisdictional error relied upon, be clearly identified and that such notice be filed by Wednesday, 20 October 2004.

14. I will appoint Thursday, 21 October 2004 for the index to the appeal papers to be settled before a registrar of the court.  I will direct that if the appeal is to be heard by a single judge, it is to be heard by me during the week of 8 November 2004 with the parties to be notified of the date of the hearing.  Next, I will direct that in the event that the matter is to be heard by a Full Court, that appropriate steps are to be taken for the matter to be heard in the Full Court sittings during the period 1 to 19 November 2004, with a time estimate of half a day.

15. I will direct that the applicant is to file and serve written submissions in support of the appeal seven (7) clear days before the date of hearing and I direct the respondent to file and serve written submissions two (2) clear days before the date appointed for the hearing.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             6 October 2004

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr R White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	29 September 2004
Date of Judgment:	29 September 2004