Transcript

[2012] HCATrans 89

[2012] HCATrans 089

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No A24 of 2011

B e t w e e n -

SBKC

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

THE HON JUSTICE MARSHALL A JUSTICE OF THE FEDERAL COURT OF AUSTRALIA

Third Defendant

Application for order to show cause

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 11 APRIL 2012, AT 11.17 AM

Copyright in the High Court of Australia

SBKC appeared in person.

MR P.H. D’ASSUMPCAO:   May it please the Court, I appear for the first respondent.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes.

MR D’ASSUMPCAO:   Your Honour, this is the Minister’s application for summary dismissal pursuant to rule 27.09.4.  Now, the summons was filed in March, your Honour.

HER HONOUR:   Yes, I have that.

MR D’ASSUMPCAO:   Accompanying the summons is an affidavit sworn, as it turns out, by myself, which is perhaps a bit irregular, I accept.  At that time I had not appreciated that I would be appearing as counsel, but I would add that the affidavit is merely formal in that it sets out the plaintiff’s, I would submit, uncontentious litigation history insofar as his protection visa application is concerned.

HER HONOUR:   Yes.  Do I take it that affidavit has been served on the plaintiff?

MR D’ASSUMPCAO:   Indeed, your Honour, that was served by registered post to the plaintiff in Villawood under cover of letter of 8 March this year.

HER HONOUR:   You seek to rely on that in support of the relief you claim in your summons?

MR D’ASSUMPCAO:   Precisely, your Honour, save in respect of one matter, and that is at paragraph 24, page 4.

HER HONOUR:   Yes.

MR D’ASSUMPCAO:   The Minister does not rely on the ground that the application does not disclose an arguable cause of action.  The two grounds upon which the Minister relies are that the proceeding is vexatious and an abuse of process.

HER HONOUR:   I see.  Yes, thank you.

MR D’ASSUMPCAO:   Your Honour, the ‑ ‑ ‑

SBKC:   Your Honour, can I just say something, please?

HER HONOUR:   Yes.

SBKC:   I came here this morning, your Honour ‑ this is the application ‑ I came here this morning to ask for an adjournment of this matter for various reasons.  As you have rightly said, his affidavit, he is going to be relying on this affidavit.  I have materials which – I will be making further affidavits.  I do not need representation.  I am going to represent myself.

HER HONOUR:   Yes.

SBKC:   Those materials that I am going to be exhibiting further to a supplementary affidavit are relevant to the questions that counsel for the defendant has raised because the – I was in detention and this came from left field.  I was thinking that this matter was going to be heard in the South Australian time which is normally when the High Court meets in South Australia, some time in August or September; that is where my mind was until this came in.  Since this came in I have moved accommodation in the detention centre.  The reason why I am asking – I am not asking for a long adjournment, probably 10 days, a week, that is all, in order that I can file those materials because, your Honour, it goes to the relevance – I mean irrelevance of this application that the Minister through his counsel has made in law alleging some abuse of process or frivolous offence.

So, your Honour, I am asking the Court to please – because there is some issues about time and other things that was not explained, and there is also other materials that I need to file in response to the already filed materials.  I have not been able to do that because I have some difficulties.  If you are mindful, if the Court is mindful to grant a short adjournment, I will be asking the Court to make further amendments or relaxation of the rules in that for the Court to allow me to post those materials or affidavit as it were, or if that is not possible for me to file them when I come to the Court when the Court is sitting because I do not have any family here in Sydney at all.

HER HONOUR:   What is the attitude to an application that the proceedings be adjourned for a week or 10 days to permit the plaintiff to place further material before the Court?

MR D’ASSUMPCAO:   That is opposed, your Honour, on the basis that the plaintiff has had sufficient time to prepare any response he chose to make to the Minister’s application.  He was served, as I pointed out a moment ago, your Honour, with the summons and accompanying affidavit in early March.  The matter was listed for hearing in late March and the plaintiff deliberately or otherwise has chosen not to put any further material.

HER HONOUR:   Yes, all right.  Well, sir, you hear what the Minister’s representative has to say.

SBKC:   Yes, your Honour.

HER HONOUR:   You have had what I might broadly describe as reasonable notice of this application, as I understand it.  In those circumstances, the ‑ ‑ ‑

SBKC:   Yes, your Honour, before you rule on that, your Honour, please.

HER HONOUR:   Yes.

SBKC:   I know that the Minister – I am not worried for the matter to proceed today or not, but it will be quite an injustice for the matter to proceed without this material being before the Court.  It will be an injustice to me, it will prejudice my case, because he has secretaries in his office, he makes a sound and they jump, just how high will they jump?  Look, I got the notice that this matter has been fixed for today on the 5th from the Registry in Melbourne.  It was not delivered till the 7th.  I moved compound in the detention centre.  Even the fax, the fax from Adelaide, I got it three days after.  The way things operate in the detention centre is different from the real world.  Perhaps he has not taken that into consideration.  I am not asking for some…..I am only asking for 10 days to file this matter.

HER HONOUR:   What is it you want to file, sir?

SBKC:   Yes, your Honour, I am going to file some additional – exhibit some additional material and an affidavit in relation to some other point and grounds that he has raised in his submission which he wishes to rely on, and I wish to counter them, your Honour, because, as you can see, your Honour ‑ I do not want to go into the matter today, but I do not see any grounds for the Minister’s counsel opposing a week’s adjournment.  I am in detention, I am not going anywhere.  I was thinking that this matter was going to be heard in August.  I only got notified that this matter is going to be heard today last week.  I got the letter.  I did not know.

He talked about the fact that the summons was filed in March.  Those summons had no dates when they should be returned.  I only knew when this matter is going to be heard last week, Thursday, from a letter from the Registry which I have here, and the Registry asked me to file materials by the 4th, but I got this on the 5th.  How can I do that, your Honour?  That is what I am saying.

HER HONOUR:   What is the document that you have just waved at me, sir?  What is that document?

SBKC:   I am sorry, your Honour.

HER HONOUR:   No, no, I do not – you have waved a document at me ‑ ‑ ‑

SBKC:   I have various materials here ‑ ‑ ‑

HER HONOUR:   Sir, I will just ask you to respond to the matter I raised with you.

SBKC:   Yes, your Honour.

HER HONOUR:   I think you were seeking to place before me some material to suggest that you were notified very late of today’s date ‑ ‑ ‑

SBKC:   Yes, your Honour.

HER HONOUR:   ‑ ‑ ‑ and that you were precluded from filing some material.  Is that the content of the document that you want to place before me?

SBKC:   Not entirely, your Honour.  The reason is this.  One, I got the material – the notice of the hearing that is on the 11th, late last week because I moved compounds in the detention centre.  I did not know that I was going to be here until about Thursday last week.  The date that the Registry asked that I should file materials has elapsed; that is one point.  Secondly, the other materials that I want to file is in relation to evidence that the Minister’s counsel is wishing to rely on and I have rebuttal evidence to counter that, which I am asking and I am praying the Court to grant me an extension or an adjournment for a week, even if it is for two days, so that I can make this affidavit and then present it before the Court and serve it on him so that he has a chance – that he does not think that I took him by surprise.

HER HONOUR:   I am going to interrupt you for a moment.  Now, I just want to direct your attention to this matter and to then hear your response.  This is in connection with the adjournment application.

SBKC:   Yes, your Honour.

HER HONOUR:   The principal ground on which the Minister seeks to have the proceedings dismissed as an abuse of the process of the Court is that rather than challenging the decision of the Federal Court in accordance with the appellate procedures that are provided you have belatedly, so it is said, commenced proceedings in the original jurisdiction of this Court, bypassing, as it were, the ordinary requirements for an assessment of an application for special leave to appeal.  Now, that is, as I apprehend it, at the heart of the Minister’s application today.  What material would you wish to file that bears on the consideration of that question?

SBKC:   Yes, your Honour, those are the things I was alluding to.  First of all, to that question, why I did not go – the materials why I chose not to or filed an application in the original jurisdiction instead of going through the rules, and secondly ‑ ‑ ‑

HER HONOUR:   Well, I am going to interrupt you because I do need, if I am to give proper consideration to your application, to know what prejudice you suffer if the matter proceeds today.  Speaking in generalities does not assist me in determining that matter.

SBKC:   Okay, your Honour.

HER HONOUR:   What precisely do you say you need two days or seven days or 10 days in order to assemble material and place before the Court?  What is it you seek to put before me?

SBKC:   Yes.  Your Honour, I seek to put before the Court in respect of the arguments already advanced and the grounds that the defendant is relying on that I have deliberately choose to abuse the process by not going through using the special leave application.  I have materials and I have an affidavit I have to make to exhibit in that material that will ‑ ‑ ‑

HER HONOUR:   What material?

SBKC:   I am talking about the materials that I am going to exhibit ‑ ‑ ‑

HER HONOUR:   I understand that.  I am asking you to outline with some particularity what it is.

SBKC:   Okay, one, materials that I received from the Registry – materials that I receive from the Registry in Canberra, from the Registry in Melbourne, on a continuous basis during the process while this matter was being formulated to be filed in the Court.  Those materials will reveal in detail when – if I do get the chance to get an adjournment to put before the Court that it is not an abuse of process that I did that, because I was being – I was following, as it were, instructions or directions with my communications and correspondences between the various Registry.

I, first of all wrote to Carolyn Rogers, Senior Registrar in Canberra, and she directed my letter back to Melbourne.  So, your Honour, those materials are relevant, even though those materials are not before your Honour.  It will prejudice my case, it will, because the Minister has just come out of left field to say my application should be dismissed.  Well, I was not expecting it.  They have had the time, your Honour. 

Your Honour, can I just submit this?  I am in detention, your Honour.  I am not living in the community where I can do things willy‑nilly.  I am in detention where you cannot even type a letter for five minutes without it shutting down, without the computer shutting down.  Okay, your Honour, so I have these materials and to the issue of time, that some five months I have not explained why I did not lodge the application, why it took me five months to lodge the application.  Those materials will clearly disclose the reason for those, and ‑ ‑ ‑

HER HONOUR:   Sir, I will interrupt you again, and I apologise for doing that, but I am trying to understand what it is you say is contained in the materials that you wish to place before the Court.  Now, you have spoken of correspondence between the Court’s Registry and yourself.  You have, I think, some experience of bringing proceedings in courts, including in this Court.  Is it your contention that as the result of a communication from this Court you understood that the commencement in the original jurisdiction was the appropriate procedure as distinct from seeking to apply for special leave to appeal from the orders of the Federal Court?

SBKC:   Your Honour, I think that is a very valid question which goes to the subject and the relevance of the application that the Minister has made, and if I should be answering that question which I put in those materials before your Honour, that will prejudice my case, and in every sense of it.  So I think the relevance of the argument that the Minister has put, it is not appropriate for me to answer that question.  While I do have the answer, I wish to put it in an affidavit form, hence I am seeking the adjournment so that those things come here before the Court, your Honour.

HER HONOUR:   Yes.  In circumstances in which there is an application listed for hearing in the regular way and an application is made for adjournment supported by submissions that the applicant – that is you – would suffer prejudice if the application is not granted, you may appreciate, sir, why it is that I am seeking to get from you just what exactly that prejudice is, and that is the reason that prompted the question.  I have to tell you, sir, that the answer did not instil confidence in me that there would be utility in granting the adjournment that you seek.

You understand the issue that prompts this application, and I suppose in circumstances where the Minister is contending that the proceedings are an abuse because they are an endeavour to delay matters, you can understand that the Minister takes the attitude that he is going to oppose the adjournment.  It is necessary for me to be satisfied that there is a proper basis for granting it.

SBKC:   Thank you, your Honour, I appreciate that, your Honour, and I am sorry to take the time of the Court in this matter, but suffice to say, your Honour, that I did approach counsel, you know, in the interests of natural justice and I told him what I was going to do right here, that this is what I was going to be seeking, but I did not disclose the reason for him, and I knew he was going to oppose it.

I am just asking for that adjournment so that – I have not put in a written submission or outline of submission as the defendant – the applicant in this matter has done.  I have not had the privilege or opportunity to do that.  So those materials and the Court – the day I got the letter, the correspondence for me to file submission, that time has passed and I have moved compounds and I am still settling and I have just ripped some of these things from the bag.  Mr d’Assumpcao rang me to ask me this morning if I have received some certain materials.  I have not received them yet and that is because that is how things work in a detention centre and so, your Honour, just…..the Court to please grant the adjournment, not because it should but because, one, it goes to the relevance of the submission which I wish to make before the Court and with application of the Minister.

As I said, I am not seeking the application in order for me to go and explore the possibility of retaining legal representation; that is out of the question.  I am seeking the application because if I do not have those materials placed before the Court it is going to prejudice my case.

HER HONOUR:   Where are the materials?

SBKC:   They are in detention centre and they are faxing some from the Federal Court in South Australia and I am posting them today in the Federal Court in South Australia.  I spoke to a Tony on the phone two days ago, he said he will endeavour to get the files and send them to me today in the Federal Court registry ‑ ‑ ‑

HER HONOUR:   What files are these, or what papers from the Federal Court?

SBKC:   They are materials, your Honour, which goes to some of the points that the Minister has raised in his affidavit, in the affidavit to his counsel, your Honour, and they are rebuttal materials which I think, given the enormity and the precise details of that affidavit which some of it – you know, to say are completely irrelevant as to the issues that are before the Court, I would be – I am praying, I am still praying to the Court that you grant this short adjournment because of the relevance of this material to my particular case in my circumstances, as it were.  Thank you, your Honour.

HER HONOUR:   Mr d’Assumpcao, can I just be clear on when it was that the plaintiff was notified of your summons?

MR D’ASSUMPCAO:   Yes, I will just identify the correspondence, your Honour; just bear with me a moment, please.

HER HONOUR:   Thank you.

MR D’ASSUMPCAO:   Your Honour, under cover of letter from the Australian Government Solicitor to the plaintiff at Villawood Immigration Detention Centre by registered mail dated 8 March 2012 the plaintiff was served with a summons and an affidavit filed in the Registry on 5 March.

HER HONOUR:   Yes.  The plaintiff has been at Villawood between 8 March and today?

MR D’ASSUMPCAO:   That is my understanding, your Honour.

HER HONOUR:   Is that so, sir?

SBKC:   Yes, your Honour, but that summons did not have a return date.

HER HONOUR:   I understand that, but you were aware of the application that was being made and you had the affidavit in support of it?

SBKC:   Yes, I had the affidavit in support of it and I started making arrangements for me to get this documentation – but I started making the arrangements, your Honour.  I have a letter, your Honour, but I do not have it here, correspondence…..that I have made in relation since I had that.  The point I am making, your Honour – if you want to proceed with the matter today, I am fine, but I am only just telling you, your Honour, that it will prejudice my case because I know that those material are relevant to you making a determination on this application.

HER HONOUR:   You keep saying that, sir.  What you fail to do is to disclose the basis on which you make that claim.  In other words, you fail to identify with any particularity what it is that you would place before the Court and that you are seeking to obtain but that was not available to you when you came in this morning.

SBKC:   Yes, you mention that, your Honour, and I am sorry – you were addressing Mr d’Assumpcao when I stood up.  I apologise for that, I just wanted to draw your attention that the return date was not on the original summons that was filed.  As to the point of the particular material, one, I have identified correspondence which goes to – between me ‑ ‑ ‑

HER HONOUR:   You have not told me pointedly what you say I will gain by reference to them.

SBKC:   Okay, I see, I thought I mention about…..I want to exhibit in my affidavit correspondences between me and the Registry.

HER HONOUR:   To what effect?

SBKC:   To the effect where the rules within was given to me and the questions I asked in relation – in regards to the letters are here, but I managed to exhibit them in an affidavit.  In relation I asked about particular matters.  In relation to issues I asked in particular to writs and leave – and special leave.  They are all in correspondences, your Honour.  The other materials that I am seeking from the Federal Court registry in Adelaide in South Australia also goes to counteract some of the materials.  I cannot fully identify them, but I wrote them down yesterday when he was talking to me on the phone.  He got the files and was giving me the materials which I have identified.

HER HONOUR:   When did you first learn that the summons was returnable before this Court today?

SBKC:   On the 5th, your Honour, and that is before the long weekend.  The letter is here, your Honour.  They are still…..was a date, it is here, so I can show it to you.  The 29th, it was posted on the 29th, the letter was dated 23rd, but it was posted – it did not leave Melbourne until the 29th, I did not receive it until the 5th.

HER HONOUR:   All right.  Mr d’Assumpcao?

MR D’ASSUMPCAO:   The only matter I would raise, your Honour, at the risk of raising this at the Bar table, I received a telephone call from the plaintiff on 3 April in response to the written submissions we served on him and in relation to the hearing, specifically his request that I arrange for his personal attendance at Court today, which I confirmed was in place.  So, with respect, the representation made by the plaintiff that he only learnt of the hearing by the 5th may be misconceived.

HER HONOUR:   Well, sir ‑ ‑ ‑

SBKC:   You want me to respond to that, your Honour?  When he is saying on the 3rd, I do not recall me ringing him on the 3rd because the date I rang him I was still in the place called Blaxland in the detention centre.  I moved from Blaxland on the 2nd, so I will have rung him before then.  The materials which he sent me which I received from him did not have the summons with a return date on it.  I told him, have you made arrangements for my attendance at the hearing?  Yes, I did ring him on his mobile, but your Honour, the fact is that the letter from the Court notifying me about this hearing today I received on the 5th, before the weekend, and that is the truth because it is on the papers when they gave it to me to sign.

HER HONOUR:   The plaintiff applies for an adjournment of the hearing of the first defendant’s summons.  The first defendant by that summons seeks an order dismissing the proceedings.  The summons, the affidavit filed in support of it and the written submissions were served on the plaintiff at the Villawood Immigration Detention Centre on 8 March 2012.  The plaintiff points out that the summons did not have a return date. 

He seeks an adjournment because he wishes to place additional material before the Court in opposition to the relief that is claimed.  However, the plaintiff has not indicated the nature of that material beyond repeated assertions expressed with a high degree of generality, namely, that absent the material he would be prejudiced in presenting his case, but repeated invitations to indicate with particularity the content of the material have met with no success.  There is some issue as to when the plaintiff first became aware that the matter was before the Court today.  However, the plaintiff has been on notice of the application and of the central issues agitated by the defendant for some time. 

The application contends that the proceedings are an abuse of the process of the court and that they have been brought with a view to delaying the plaintiff’s removal from Australia.  As I have endeavoured to draw to the plaintiff’s attention, putting to one side considerations of that character, central to the Minister’s claim is that the plaintiff’s failure to engage the appellate jurisdiction of the court provides a powerful discretionary reason for the relief that the Minister claims.  Nothing that has been put in support of the application for an adjournment touches on prejudice to the plaintiff in addressing that complaint.  In the circumstances, the application for adjournment is refused.  Yes, Mr d’Assumpcao.

MR D’ASSUMPCAO:   Thank you, your Honour.  Your Honour, we rely on the written submissions and I had ‑ ‑ ‑

HER HONOUR:   Yes.

MR D’ASSUMPCAO:   May in inquire, I should add, whether your Honour has had an opportunity to read those submissions?

HER HONOUR:   I have had an opportunity to read them.

MR D’ASSUMPCAO:   Yes, your Honour.  This morning I had proposed only to enlarge on one aspect and that was the matter your Honour quite rightly, with respect, appreciated.  The central tenet of the Minister’s case relates to the plaintiff’s failure to attend to the filing of a special leave application or an application for an extension of time to apply for special leave, neither of which has been done.  In the written submissions we refer to a decision of Justice Kirby in the decision of Heerey.  This is at item 3 of the amended list of authorities.  This is Heerey; Ex parte Heinrich (2001) 185 ALR 106.

In that case it was an application for mandamus against judges of the Federal Court.  The three justices affirmed a decision of Justice Mansfield in relation to a sequestration order and the appellant, or the applicant rather, failed to apply for special leave but instead invoked the original jurisdiction of the court.  What Justice Kirby said at paragraphs [16] to [18] is quite telling.  This is on page 109.  At paragraph [16] towards the bottom of that paragraph, his Honour notes that instead of seeking special leave:

to engage the appellate jurisdiction of this Court, the applicant has proceeded in the original jurisdiction of this Court by way of the constitutional writ of mandamus.

Now, his Honour goes on in the next paragraph to observe that whilst the Court has the power, it is obviously discretionary, which he has tried to say, and identifies the matters rather helpfully upon which this Court might, in the present circumstances, have regard to in deciding whether or not this matter ought to be dismissed and, relevantly, it includes that a party has not appealed without good reason and thereby bypassing the primary means envisaged by the Constitution, namely, section 73 and, of course, the other relevant pieces of legislation in section 33 of the Federal Court of Australia Act and section 35A of the Judiciary Act. Now, section 33 of the Federal Court of Australia Act, I apologise, your Honour, was not in my list of authorities.

HER HONOUR:   Not at all.  Yes.

MR D’ASSUMPCAO:   But, in essence, it provides that special leave is required from a decision of a single judge exercising the appellate jurisdiction of that court.  It is uncontentious.  Section 35A of the Judiciary Act, as your Honour knows, specifies the requirements the Court must have regard to in deciding whether to grant special leave.

HER HONOUR:   Grant special leave, yes.

MR D’ASSUMPCAO:   Now, in paragraph [18] of the decision in Heerey, his Honour refers to the decision of Glennan pointing out there are no hard and fast rules, but it is sometimes premature to be instituting proceedings in the original jurisdiction where a person has an extant right.  Noting that discretion was refused in that case, his Honour says that:

The same approach should be adopted here. No other approach would uphold the constitutional scheme and the statutory procedures for special leave which are a protection for litigants generally, as well as for this Court.

I would add as an adjunct to that, to prevent in instances such as the present case an abuse of process, with respect to his Honour of course.  Now, his Honour in paragraphs [19] and [20] deals with the fact that the applicant in that case had applied for mandamus and, of course, mandamus is a writ which requires jurisdictional error to be established.  In our case, the plaintiff has applied for certiorari as against Justice Marshall’s decision.  Of course, that is ancillary relief and the Court would first have to be satisfied that jurisdictional error is otherwise present in the decision in order to grant that relief.

The decision of Justice Kirby was essentially endorsed in a decision of Justices Gummow, Hayne and Callinan in Glennan (2003) 198 ALR 250. Again, that decision was not in the Minister’s amended list, but I mentioned it at footnote 18 of the written submissions.

HER HONOUR:   Yes.  I have it with me.

MR D’ASSUMPCAO:   Thank you, your Honour.  That was a similar case to the present, but really what their Honours were saying there is a person who had challenged a notice of assessment by the Commissioner of Taxation and had fully exercised the statutory rights of review, both full merits review and on judicial review and then seeks to circumvent the statutory mechanisms to appeal to the High Court as the final court of appeal, to use the language of section 35A, the ordinary course is the Court would refuse the writs in the exercise of its discretion.  So, your Honour, for all the reasons contained in the Minister’s written submissions, together with the matters outlined in the affidavit, those are my submissions, if the Court pleases.

HER HONOUR:   Thank you, Mr d’Assumpcao.  Now, sir, you have Mr d’Assumpcao’s affidavit.

SBKC:   Yes, I do, your Honour.  I do have his affidavit.

HER HONOUR:   That sets out a number of formal matters.  Do I take it there is no objection to that material?

SBKC:   That affidavit is again as it is and I do not wish to make any objection as to the facts there, but this I want to say, which is the ground, is that the defendant has not established anything to justify the dismissal of these proceedings in that affidavit.  There are evidential material in the material before the Court that that affidavit has not addressed.  It does not rebut them.  In other words, if this affidavit has not rebutted any of my affidavits or any of the material that I have placed before the Court, then this Court cannot accept that submission.  Why?  The proposition they made to this Court in the first instance was that the application does not disclose reasonable cause.

HER HONOUR:   Sir, I do not believe that is pressed.  As I understand it, the Minister makes no such assertion, rather and consistently with the way the matter has been presented today, the real force of the Minister’s application for the proceedings to be dismissed is that belatedly you have commenced proceedings in the original jurisdiction seeking that the orders made by Justice Marshall in the Federal Court be brought up and quashed for jurisdictional error when the appropriate mechanism to test the legal correctness, including matters going to jurisdictional error, would be an application for special leave to appeal.

A number of the grounds in the material that you have filed, I should say, do not on their face identify jurisdictional error so much as there are a number of errors that you assert in the approach that the judge of the Federal Court took which you say involve legal error.  In the ordinary course, those are matters that could be the subject of an application for special leave to appeal.  That should be brought within the time limit specified by the rules, but provision is made for the Court to extend time if there is an appropriate reason for it. 

The authorities to which Mr d’Assumpcao has referred the Court are authorities that commend of you that, absent good reason, the Court should not permit a person to, as it were, bypass the ordinary mechanisms for appellate review, including the filtering process that the special leave procedure involves, by permitting proceedings to be brought and to go forward in the original jurisdiction.  Do you understand what I am putting to you?

SBKC:   Yes, your Honour, I do.

HER HONOUR:   All right.  Now, what is your answer to that?

SBKC: Thank you very much, your Honour. Before the Court – before the Federal Court, I should say, and, indeed, the Federal Magistrates Court were matters addressed to judicial review against a decision of a tribunal and those matters went before a Federal Magistrates Court and I understand the question you have put to me or deliberations and explanation you have given as to the reason that is not dichotomy as far as I understand it that there is a clear distinction between going under section 75(v) or going through special leave, I understand that.

HER HONOUR:   Yes.

SBKC:   Okay.  I will address that, your Honour.  Suffice to say that those matters need for special leave appealing the decision of his Honour Marshall to go to this Court on special leave were not deliberate and I know that – and I am not going to visit it again and you mentioned that the Minister does not press the issue of the grounds.  Well, can I say, your Honour, that I do not think that if for some lack of judgment which is not deliberate, a plaintiff should be punished for the errors of a Commonwealth officer which is ‑ ‑ ‑

HER HONOUR:   I do not understand that submission.

SBKC: What I am saying here is that because I have come under section 75(v) of the Constitution, I am not going through special leave, will not of themselves – and you refer to the authorities that he has referred to. Also he mentioned the authority of his Honour Justice Kirby. There is also an authority of Justice Kirby in the matter of Minister for Immigration and Multicultural Affairs & Anor; Ex parte Miah. In that very case, which was before the Full Court of five Justices, involved the prosecutor bypassing the Refugee Review Tribunal from a delegate of the Minister bypassing the Federal Magistrates Court, the Federal Court, the Full Court of the Federal Court and came straight to this Court under section 75(v) of the Constitution. This Court granted relief to Mr Miah. So that is also a precedent and an authority which brings this into a very, very balancing act.

HER HONOUR:   Can I just interrupt you for a moment.  It may be accepted that on occasions plaintiffs have obtained relief in this Court in the exercise of its original jurisdiction.  Telling me that there is one or more such decisions does not assist with why, in the circumstances of this case, when you assert that Justice Marshall committed various errors of law, you did not apply for special leave, a mechanism with which you were, I think, familiar having regarding to the history of earlier proceedings that are set out in the affidavit, but rather commenced the present proceedings. 

What you face is the difficulty that Justice Kirby identified of the orderly conduct of litigation.  If one were to say of any person, well, there is no occasion for that person to seek special leave, be subject to the filters that exist with respect to the grant of special leave, they can five months after the relevant decision commence proceedings in the original jurisdiction of the court, that would frustrate the constitutional scheme.

SBKC:   That is true.

HER HONOUR:   That is the difficulty that you face, I think, sir, and it is that that you need to address attention to.

SBKC:   Yes, your Honour.  I am going to address my attention to that.  I just brought that case up because in that case that particular person was out of time for about two years or so.  There is also a case in Wentworth.....London Borough Council…..in 2009 and in that case where the court has held that a magistrate was wrong in determining that there was an abuse of process under the Act for a local authority to bring prosecution, even though there were mechanism rather than prosecution, the court ruled that that was not the case.

His Honour Justice Marshall, as I began by elaborating what the process was that he was reviewing or a case of where a person’s life was the ultimate sacrifice, started, five minutes after my opening statement, saying I can go to the High Court when he dismisses the application.  How will a judge say that, that because I think that my first PV application went for a long time, therefore this one will also be the same, that he can assure me it will not be, that the delegate’s decision must not be disturbed and should not be disturbed?  How can a justice of the Federal Court that is supposed to be an unbiased umpire, say that five minutes into the presentation of my submission and how can that judgment be sustainable in Australia?

I am not saying that his Honour has been doing this, but in this very particular case, hence I drew attention to what the affidavit of the Minister did not address.  I have asked that the transcript of that proceeding be before this Court.  Those are part of the things I was going to get to this Court.  Yes, your Honour.

HER HONOUR:   Can I just interrupt.  I have before me a copy of Justice Marshall’s reasons for decision dated 19 May 2011.

SBKC:   Yes, your Honour.

HER HONOUR:   Is there some part of those reasons that was the subject of that last submission that you were making?

SBKC:   Yes, there is – I do not quite know what you are referring to your Honour.

HER HONOUR:   I was trying to find out from you, sir, whether there is something in Justice Marshall’s reasons to which you were just directing my attention?

SBKC:   Are you talking about on the face of the record?  Is that what you are referring to?  Yes, your Honour.  What I have just said is not there.  What is on the transcript and is on my affidavit and that is why I was saying to your Honour that counsel in his affidavit, the reason why they have not directed their attention to the other matters is because this type of injustice cannot be allowed.  It is like a judge telling a jury at the beginning of a trial that the accused is guilty irrespective of their guilt or innocence.  How can a judge tell me five minutes into my submission, when I did not make any written submission, that I can go to the High Court if he dismisses the case?  That is what happened back in Africa.  When they tell you something like that, somebody can do anything and they will get away with it.  That is why people have been dying in various ‑ ‑ ‑

HER HONOUR:   Just before we go to conditions in Africa, can I interrupt you and just direct your attention to the lengthy submissions that you filed on 19 October last year in support of the relief that you claim in your application to show cause.

SBKC:   Yes, your Honour.

HER HONOUR:   Can you just take me to where this matter is addressed in those so I understand the point that you are seeking to advance?

SBKC:   I thought I covered the grounds – in my written outline of submission, your Honour, I did not include that, but I made sure in my affidavit and the form.....but I also mentioned that I will be making further submission at that point.  The reason why, your Honour, is that this written outline of submission – or I do not know.....been to go back and front.  This correspondence, I do not know if I should put them before you.  I am going to ask leave to put this correspondence, between me and the Registry, to the Court.  Your Honour, I am going to ask you leave to submit this material because ‑ ‑ ‑

HER HONOUR:   Just before we deal with that, let me deal with the last submission that you were putting.

SBKC:   Yes.  It is not, your Honour – I do not think I addressed that very particular point in my outline of submission, but is on my affidavit and I asked in my – it is form 2F – is on the form 12, but I did not put it, and I also made sure that I put at the end that I propose to make other submission in addition to this written outline of submission in order to elaborate on the points and grounds already made and were not mentioned, your Honour.

HER HONOUR:   Yes, all right.  Now, what is the next matter you want to raise?

SBKC:   I talked about leave, asking leave, your Honour, for this ‑ ‑ ‑

HER HONOUR:   Yes.  Leave to do what?

SBKC:   To file these documentations, yes. 

HER HONOUR:   What is the documentation?  Perhaps if you show it to Mr d’Assumpcao.

MR D’ASSUMPCAO:   Yes, your Honour.

HER HONOUR:   I understand that the plaintiff wishes to place that before the Court.  Is there any objection?

MR D’ASSUMPCAO:   Only on the basis of relevance, your Honour.  There appears to be two or three pieces of correspondence between the Registry and the plaintiff and I am not sure how it would assist your Honour in the resolution of the matters before ‑ ‑ ‑

HER HONOUR:   The plaintiff is unrepresented.

MR D’ASSUMPCAO:   Yes, your Honour.

HER HONOUR:   I think in the circumstances, perhaps if the material is handed up, we will hear how the plaintiff seeks to make use of it and you will have an opportunity to comment on it.  Is that satisfactory?

MR D’ASSUMPCAO:   Certainly, your Honour.

HER HONOUR:   Yes, very well.  Now, I will just indicate what it is that has been handed up.  It comprises firstly, a letter by the Deputy Registrar of the Melbourne Registry to the plaintiff dated 30 May 2011 drawing attention to the provisions of the rules with respect to an application for an order to show cause; a letter apparently by the plaintiff to the Deputy Registrar bearing the date 2 November 2011; a letter from the Deputy Registrar, 24 October 2011 with an attachment comprising information of assistance in the preparation of applications for prerogative or constitutional relief; and a letter from Intercountry Services, Family SA addressed to the plaintiff dated 12 January 2012.  Together I will mark those documents as exhibit 1 on the application.

EXHIBIT:    Exhibit 1.....Letter from the Deputy Registrar of the Melbourne Registry to the plaintiff dated 30 May 2011.  Letter from the plaintiff to the Deputy Registrar dated 2 November 2011.  Letter from the Deputy Registrar to the plaintiff dated 24 October 2011 with attachment.  Letter from Intercountry Services, Family SA to the plaintiff dated 12 January 2012.

HER HONOUR:   Now, what is it that you seek to get from these documents, sir?

SBKC:   Yes, your Honour.  Can I leave that at the moment to address the question that you have asked me.  You asked me there was a next point.

HER HONOUR:   Yes.

SBKC:   Yes, but when you say that, I do not know if you wanted me to finish with the point when you said in my outline of submission regarding the point that I raised in relation to the comments of his Honour Marshall.

HER HONOUR:   You are returning to a submission that in an exchange in the Federal Court Justice Marshall indicated in the event the proceedings were determined adversely to you, you would have recourse by way of an appeal to this Court, or an application for special leave to appeal to this Court.  Do I have that right?

SBKC:   No, that is not it.  That is not it.  This came out of blue.  I have put it in my affidavit.  I do not know if you have had the time to read my affidavit, your Honour.

HER HONOUR:   I was just going to ask you, you have filed two affidavits in the proceedings.  To which affidavit are you referring - your first or the second?

SBKC:   The first one, your Honour.

HER HONOUR:   Just bear with me one moment whilst I turn that up.  All right, whereabouts is the material that you are referring to in that affidavit?

SBKC:   If you go, your Honour, to page – it is at the end of it – starting from paragraph 115 at page 23.

HER HONOUR:   Thank you.

SBKC:   At 30 – at 40.

HER HONOUR:   Let me just read that.  Yes, I have read that.

SBKC:   Yes.  It concludes at paragraph 120.  It goes all the way to paragraph 120, your Honour.

HER HONOUR:   Yes.

SBKC:   Those statements were a statement that, in my submission, I said his Honour predetermined before coming to the court, before he read the matter, to dismiss the matter because if he came to hear the matter he would not make those statements.  Those statements were prejudiced, they were biased.  They are an injustice to my case because what connection had my previous matter to do with the matter that was before his Honour?  There were clearly no reference of the two matters together.  There was no reason for that.  I was only talking about this case.  I am trying to direct his Honour to the fact that the delegate of the Minister has stopped that process where I would have been able to obtain an expert forensic pathologist report on the scars on my body and that is when he stopped me. 

Five minutes – I am being generous – has asked that I was going to provide materials, including this transcript, because this transcript of that hearing is not before this Court.  How can you determine a case that I am making before a justice of the Federal Court, which is in my affidavit, which the defendant – and, in fact, the defendant is not even here.  The defendant, Justice Marshall, has not made this application.  He did not enter a submitting appearance with the first and second defendant.  He entered into his own submitting appearance through the Federal Court, but that is a different matter altogether.

What I am saying, your Honour, is that this matter, an injustice, no court can permit such that a judge would tell me at the beginning of my hearing that I can go to the High Court when he dismissed his application.  So why am I standing there?  That is because I thought my first application went for a long time that this one would go through, that he can tell me it will not, that a decision of the delegate should not be disturbed and cannot be disturbed.  So what is the purpose of the appeal process or the judicial process if a judge was going to tell me that, in Australia?  So the transcript of that position needs to be before this Court so that there is no two ways about it, that I am not just making things up. 

That is why I alluded to the fact that the defendant has not counteracted anything I made in my affidavits and those are the questions that should be addressed in the course.  As for the face of the record.....I have nothing else to say after a judge makes those comments.  It is like it is all academic.  The decision had been made.  If that was in a criminal matter that would be a mistrial.  I do not think that this statement justify that, irrespective of the fact that I brought this matter in the original jurisdiction of the court instead of the appellate jurisdiction to special leave, that judgment cannot stand.  I am seeking to address that issue, your Honour, that you wanted me to address.  What I am just trying to bring to your attention the reason why – because this is against – all three defendants are officers of the Commonwealth. 

HER HONOUR:   The relief that you claim in your application is claimed on the basis of the 15 grounds together with the sub‑grounds that are set out in the amended application filed on 19 December 2011 which do not raise that particular matter, sir.  Now, I appreciate ‑ ‑ ‑

SBKC:   Yes.  Excuse me, your Honour, can I just interrupt your Honour, please?  I am sorry.  The amendment – if you read those communication, those correspondences between the Registry and me was only for the name, the citation, the name.  That was the only amendment made.  I said I was going to make further amendment.  Every amended thing has to be underlined.  The only amendment that was made on the instructions of the Registry was the name, SBKC.  I have not made my amendments.  I was going to make my amendments when I have had time to settle so that I can put the case properly.  I knew that there were omissions about the necessity to quash the decision of the Refugee Review Tribunal.  Hence I say it was a misjudgement because these things have to travel to places to be typed and sent back to me, sometimes six weeks interval before I got anything.

Now, as to the point that the summons I made – I mean, the amended application – summons I filed on 19 December, when it was, I cannot remember the date unless I look at it – those summons were not part of the amendment.  That is why I was referring your Honour to those correspondences.  The things are filed on 19 October.  The only changes that were made was just the name and I was going to make amendments and I did that amendment because of the instruction from the Registry, to change the name because of section 91R of the Migration Act, your Honour.

So to the point that you raise, or you were trying to raise before I interrupted you, that the summons did not raise that point, yes, it did because, your Honour, the rules which I was provided with, which are before you now, your Honour, did not mention form 20 and form 21 has not got any position for you to elaborate on the grounds.  It only has the orders you are seeking.  Form 21 is distant from form 20 and I was provided with form 21 summons from the Registry on three occasions.  So, your Honour, if you like I might ‑ ‑ ‑

HER HONOUR:   I was directing your attention ‑ ‑ ‑

SBKC:   All right, your Honour.

HER HONOUR:   ‑ ‑ ‑ to the application for an order to show cause filed on 19 December of last year.

SBKC:   Yes, your Honour.

HER HONOUR:   That is the amended application in which you set out, comformably with the Court’s rules, the 15 grounds which contain in some instances sub‑grounds upon which you claim the relief.  The rules say that a plaintiff shall be confined to the relief sought and the grounds stated in the order to show cause.  That was the matter I was drawing to your attention because it seemed to me to not be necessarily advancing matters, from your point of view, to raise with me material outside the grounds as distinct from responding to the matter that I raised with you at the outset which concerns the regularity of proceeding in the way that you have.

SBKC:   Okay.  Now, I went to that point of my issue.  If you want me to address that point, if that is the point you want me to go to, I will go to that point directly, your Honour.

HER HONOUR:   Thank you.

SBKC: Firstly, I have not committed any offence by bringing these proceedings under section 75(v) of the Constitution.....there is an appellate jurisdiction through special leave and it was not deliberate, hence I said it was a misjudgement or, given the situation that I found myself at that particular time, and bearing in mind that I was also very mindful of the fact that – of what his Honour had said in court and, to me, I believed that the proper course of action will be to challenge that judgment under section 75(v) of the Constitution because I felt that an injustice and, indeed, an injustice has been committed by those statements.

So to the point, your Honour, that I have raised.  In the defendant seeking to have this matter dismissed, the defendant – I am not prejudiced in any way to address the issues that I have raised with regard to the Refugee Review Tribunal’s decision.  They are not prejudiced in any way, shape or form to be able to actually let that matter proceed to a full hearing or trial.  Case law, your Honour, makes it abundantly clear that the discretion to dismiss proceedings summarily, you know, has to be.....with, you know, very, very carefully and it is not just something just because the counsel for the Minister has said so, therefore this Court has to oblige to that because there are serious issues of human rights and the jurisdictional error that were committed in the decision of the RRT, which point his Honour did not address, and hence I raised the issue.

So, your Honour, what happened before, your Honour, that finished or which her Honour Justice Crennan in 2006.....proceedings in relation to those matters finished.  In 2008, the issues that arise in connection with the application of the second application to the Minister and hence the RRT are quite different and so to bring those points – those points does not justify the end that this very proceeding has been brought in the interest or in the anticipation that that process was going to be repeated or for the assertion that I brought these because I was trying to prolong my removal from Australia.  That is not the case.  Those are just assertion.

You said, your Honour, we cannot make generalised statements.  The defendant cannot make generalised statement.  Before anyone is removed from Australia, your Honour, the Minister, through his delegate, serves them a notice telling them – they visit them, telling them we are going to make arrangements for your removal, and after that, within 10 days, they give them a notice telling them this is when you are going to be removed and this is the flight you are going to go with.  There is no evidence before this Court, on the affidavit of the defendant, to prove that such exist in this Court.

To bring such an argument that I am trying to delay because of an injustice, I cannot bring it to your Honour.  Why they bring this, your Honour, is this.  Why have they not brought this cause of action since they got the summons in October 2011?  It is because the defendant and the Commonwealth, through their negligence and breach of duty of care to me while I was unlawfully detained, caused me personal mental injury where I am seeking compensation.  In order that that does not proceed, hence they have brought this up, because since they are talking about time, they should have brought this up in January.  Why did they not bring it up?  It is because they knew that those matters were proceeding, hence, because they are making generalised statement.  My submission, your Honour, is that there is nothing before the Court to suggest that I have brought this material, this proceeding before the Court, simply because I want to delay my removal from Australia.

HER HONOUR:   Yes.

SBKC: Secondly, your Honour, I did not bring these proceedings under section 75(v) of the Constitution and the original jurisdiction of this Court because I did not want to follow the processes laid down by the Court, the rules, at all. The only reason was that because I was very, very disabled from putting my submission or making any sense at all out of the shock I suffered from the statement of his Honour Justice Marshall, five minutes, I thought because he was an officer of the Commonwealth and the only recourse to do that was to come through section 75(v) of the Constitution.....that might have been an error, but the proper thing for the Court to do is to stay part of those proceedings and allow for amended applications to be made in the right jurisdiction of the Court.

Your Honour, that is what I strongly submit, that this Court cannot rely on the submission of the defendant to dismiss an application where my rights have been violated, where a Commonwealth officer has not and failed to perform a specific duty that is required by law.  So, your Honour, again, the case of the out of time matter, I am very conversant with issues regarding filing application at the proper time.  I have not at any stage in my procedural and diverse litigation and diverse – I tried to stay within the limits and confines of the time allocated by law.....that the decision was handed down in Plaintiff S157 v Commonwealth of Australia in 2003 where the challenge of section 486 as to time limits.

But counsel can.....from the records that I have not at any time filed materials out of time. The situation that I found myself, coupled with the fact that I was suffering a lot of things which are completely relevant, my personal or mental – to the course of law, I chose that because I did not want to go and begin to seek for time when I know that it might not be possible, which means I might be jumping about three or four hoops and because I determine that the Refugee Review Tribunal is the Commonwealth, the tribunal member is a Commonwealth officer, the delegate is a Commonwealth officer, the Federal Magistrate is a Commonwealth officer and his Honour Marshall J is a Commonwealth officer, and section 75(v) provide mechanism for those things to be redressed.

This is not a deliberate attempt – I have not in any sense abused the process of the Court. This is new material. This proceeding have ways to go and either go through leave for special – to apply for special leave to appeal or they come through section 75(v).....the leave one is.....I have not done that, it is not deliberate. My submission is that the Court adjourn that part of the proceedings so that I can file this material in the appropriate court, but not to dismiss it because there are serious violations of the Migration Act by the Tribunal which his Honour did not see – very, very serious violation.  I can point one to you, your Honour, if you do not mind.  I can just take you to attachment 1, your Honour.

HER HONOUR:   Attachment 1?

SBKC:   Yes, your Honour.

HER HONOUR:   What are you directing my attention to?  I have a large amount of paper before me.  It would assist if you were ‑ ‑ ‑

SBKC:   Yes, I am directing your attention to document 1, your Honour, and document 2 at page 31 ‑ ‑ ‑

HER HONOUR:   You are referring to attachment 1 to your affidavit sworn 14 October 2011?

SBKC:   Yes, your Honour.

HER HONOUR:   At what page?

SBKC:   At page 31, your Honour.

HER HONOUR:   Yes.

SBKC:   Line 45, at the bottom of the page, there was a question there which the tribunal asked under section 424 and his powers to seek additional information from an applicant:

“Just on that, had you ever been visited by anyone from the Nigerian High Commission whilst you were in prison before?”

. . . 

I said:  “Never”
“The tribunal:” Never?
I said:  “Never”
Tribunal:  Do – its not unusual for.....
I said:  No.

That question, that additional information that the Tribunal sought from me, your Honour – section 424 say if the Tribunal seeks additional information at the review the Tribunal must have regard – must have regard to that information.  The tribunal has not had regard.  Now, I am coming to the reason why this is relevant.  I raised this issue before his Honour Marshall J.  I raised this issue before him.  This transcript before the Federal Magistrate – this very counsel that is sitting here today represented the Minister before the Federal Magistrate.  He did not want the magistrate to have this transcript, your Honour.  They try to avoid bringing this transcript before the court.  Now, your Honour, I can take you again, your Honour, to another particular place.

HER HONOUR:   Well, I am going to stop you there.  I am dealing with an application for the dismissal of your proceedings primarily advanced on the basis that the proper exercise of the discretion of the Court consistently with statements made by the Court in the cases to which Mr d’Assumpcao has taken me makes it appropriate to dismiss proceedings commenced in the original jurisdiction challenging the determination of a justice of the Federal Court in circumstances in which the appellate proceedings have not been engaged.  I have allowed considerable indulgence to you, because I appreciate you are appearing for yourself, in developing your opposition to that ground, but taking me to the reasons of the Tribunal and to exchanges that took place between you and the member of the Tribunal does not meaningfully assist in the resolution of the issue that it falls for me to determine at this point.

SBKC:   Yes, your Honour, I appreciate that.  Thank you for mentioning that, but I was not doing that just because I did not know what I was trying to address.  I brought this point out to make the point that what the Court, and in my submission, should be doing in the face – where there are jurisdictional errors on the face of the record in the Tribunal’s decision, that, in my submission, this Court should not be dismissing this application but, rather, should be making orders for this matter to go back.  Because I am not represented, I sought and I followed the instructions given to me from the Registry of the Court.  I did not do this on my own.  I followed the instructions given to me by the Court’s Registry.

HER HONOUR:   Yes, all right.

SBKC:   Hence, I am saying that the Court should, rather than dismiss it on the face of what is on the record of the Tribunal’s decision, give leave for this material or for this proceedings to proceed in the appellate jurisdiction, because it has been done before.  Counsel for the Minister, he was not there when his Honour Gummow J heard my matter in 2002, and after the matter was – I appealed the matter to the Full Court of this Court.  When his Honour’s judgment was quashed, counsel for the respondent were dancing and praying this Court not to hear the matter but to send this matter back to the Federal Court for the Federal Court to determine it.  I did not object.  I consented to them then.  I said, okay, whatever you want.

The matter was referred – returned back to the Federal Court on.....They were praying that.  That matter was subsequently ruled in my favour by the Full Court of the Federal Court and, hence, I am saying, your Honour, in the interests of the administration of justice, in my submission, based on the errors, on the face of the record of the Tribunal’s decision, that this matter be stood down so that an application in the appellate court of – appellate jurisdiction of this Court via seeking special leave should be attended to.

Your Honour, finally, I have not abused the process of the Court.  It is my right to have appealed to.....special leave and so if that avenue is there, then I have not abused the process of the Court.  I might have come under misjudgement as to what to do.  Some of the instructions that I have received on the phone and on written materials between myself – in the correspondence I receive – so there are many more, about four or five more which are not before you, your Honour.  Your Honour, I am saying that on the basis of the material before you and my submission, my prayer is that you – the Court move the matter so that it is referred in the proper jurisdiction of the Court.  Those are my submissions, your Honour.

HER HONOUR:   Yes.  Mr d’Assumpcao.

MR D’ASSUMPCAO:   Thank you, your Honour.  With respect to exhibit 1, I do not object, but I just note that one of the letters from the Registry was, on my recollection, dated 30 March 2011.  Now, the decision of the third defendant, Justice Marshall, was given on the 19th of that month and I merely ‑ ‑ ‑

HER HONOUR:   I am not sure, Mr d’Assumpcao.  The first letter seems to be one dated 30 May 2011.

MR D’ASSUMPCAO:   Forgive me, your Honour.  Justice Marshall’s decision was given on 19 May 2011.  So shortly thereafter the plaintiff had engaged with the Registry.  Taken in conjunction with the submissions made today that he was aware of the time lines, as I understood him to say, those are the only points in reply, your Honour.

HER HONOUR:   Thank you.  This is an application for the summary dismissal of proceedings brought in the court’s original jurisdiction claiming constitutional writ relief.  The second and third defendants have filed submitting appearances.  The background facts are set out in the affidavit of Paul Henry d’Assumpcao, the solicitor who has the conduct of the matter on behalf of the Australian Government Solicitor.

The plaintiff is a citizen of Nigeria.  He and his family entered Australia in 1994.  In December 1995 the plaintiff applied for a protection visa.  It is unnecessary to relate the history respecting that application because it is accepted that the plaintiff was not precluded from making a further application for a protection visa as he did on 15 January 2009.  That application was refused by a delegate of the Minister on 1 July 2009. 

The plaintiff applied for a review of that decision by the Refugee Review Tribunal.  Following a hearing before the Tribunal, the delegate’s decision was affirmed.  An application for judicial review of the Tribunal’s decision was dismissed by the Federal Magistrates Court.  On 19 May 2011, the Federal Court, constituted by Justice Marshall, heard and dismissed an appeal from the orders of the Federal Magistrates Court. 

On 19 October 2011, the plaintiff commenced the present proceedings.  On 19 December 2011, he filed his amended application for an order to show cause.  By that application, the plaintiff claims an order for a writ of certiorari to bring up and quash the orders of Justice Marshall made on 19 May 2011.  Claims are also made for mandamus directed to the Tribunal and for prohibition directed to the Minister to restrain him from removing the plaintiff from Australia.  The plaintiff asserts in the body of his amended application that he be granted an enlargement of time in which to claim the issue of mandamus because he has been moved to and from three prisons since the date of the order in the Federal Court and this has occasioned difficulty in the preparation of materials in support of the application. 

Today he has tendered material which reveals correspondence passing between him and the Melbourne Registry of this Court dated 13 May 2011.  No explanation is otherwise offered for the delay in bringing the present proceedings.  Central to the success of the claims which are made in the amended application is the claim for certiorari to bring up and quash the orders of the Federal Court.  All of the grounds set out in the amended application are directed to that claim. 

The Minister by summons applies for summary dismissal contending that the proceedings are vexatious and an abuse of the process of the Court.  In written submissions, the Minister contends that the bringing of the proceedings in the original jurisdiction five months after the adverse determination of the appeal to the Federal Court invites the conclusion that the proceedings have been brought as a tactic to delay the plaintiff’s removal from Australia.  It is not necessary to determine whether the proceedings constitute an abuse of the process of the Court for the reasons canvassed in the written submissions.

While this Court has jurisdiction to provide the relief that the plaintiff claims, the grant of that relief would ordinarily be refused as a matter of discretion in circumstances where, as here, the plaintiff has failed to engage the appellate jurisdiction of the court. 

In Glennan v Federal Commissioner of Taxation (2000) 198 ALR 250 at 254, 255 the Full Court held that the principles were correctly described by Justice Kirby in Re Heerey; Ex parte Heinrich (2001) 185 ALR 106 at 109 to 110, paragraphs [17] and [18] with respect to the grant of relief under section 75(v) in circumstances in which available rights of appeal have not been explored. As the Full Court observed, the remedies for which section 75(v) provides do not lie as of right. Turning to Justice Kirby’s statement in Heerey; Ex parte Heinrich, his Honour observed:

Although this Court has the jurisdiction to provide that relief against the respondents, and the power to do so if the other requirements of law are fulfilled, ordinarily, in a case of a judgment of a federal court, where an appellate facility is available, this Court will, as a matter of discretion, refuse to issue a constitutional writ. It will do so where the applicant has failed, or omitted, to engage the appellate jurisdiction as provided by s 73 of the Constitution. This approach is taken to ensure that parties, with rights to seek special leave to appeal, do not, without good reason, bypass the primary means envisaged by the Constitution for the correction of alleged judicial error nor circumvent the legislative arrangements that have been adopted requiring that special leave first be obtained in appeals to this Court.

In addressing this consideration, the plaintiff submitted that in the course of the hearing in the Federal Court an exchange had taken place which caused him to apprehend that he would not obtain a fair hearing and that he had perceived the appropriate course, in light of what he took to be the “injustice by statements made” by the judge, made it appropriate that he proceed to claim relief in the original jurisdiction.

Two things may be said about that submission.  The first is that that particular complaint is not ventilated in the 15 grounds set out in the amended application to show cause.  The second is that the submissions did not, in any event, explain either the delay in commencing the proceedings or, more importantly, the failure to bring an application for special leave to appeal and, if need be, for an extension of time in which to do that in accordance with the rules and to ventilate that asserted error together with the other bases upon which it is sought to challenge the correctness of the decision of the Federal Court.

While no hard and fast rule can be laid down respecting the circumstances in which an application for constitutional writ relief might be entertained when available appellate rights have not been pursued, nothing in the plaintiff’s amended application, or in the submissions advanced today, provide a basis for considering this is an appropriate case in which to permit the proceedings brought under section 75(v) to go forward. As Justice Kirby observed in Heerey:

Were any other approach to be adopted, every party, dissatisfied with a decision of federal judges or magistrates, might seek to engage the original jurisdiction of the Court under s 75(v) of the Constitution, asserting actual or constructive failure on the part of those judicial officers to exercise their jurisdiction in accordance with law, thereby circumventing the statutory requirements of special leave.

For these reasons, the plaintiff’s amended application is dismissed with costs.  If there is nothing further?

SBKC:   Yes, your Honour.

HER HONOUR:   Yes?

SBKC:   I ask for leave from you to appeal against your decision and, in particular, ask for leave in the position that those rules that are applicable for personally coming to deliver materials in this Court should be relaxed, that I will post the materials.  The reason I am asking for leave from your Honour, I am not challenging your judgment any more, because I asked you at the beginning I needed an adjournment to file matters to explain some of these points.  I agree with some of the things you said, I disagree with some of them, so I need leave right here, your Honour, to please allow me to file an application in the appellate jurisdiction of the Court.

HER HONOUR:   The course that you take from here is a matter for you.

SBKC:   Yes, your Honour.

HER HONOUR:   The question of leave to appeal from the decision that I have just made is a matter that you may explore by reference to your rights in accordance with the rules.

SBKC:   Yes, I do know that, your Honour.  What I am saying is that why I apply for it is that – can you make an order that those rules requiring that somebody physically come here to file the materials be relaxed because I do not have family in Sydney and I do not have anyone that is going to come here to submit this into the Court at the time that is required for appeal.  You can make that order, your Honour, that the Registry relax that rule, that if I choose to appeal your judgment that those rules be relaxed.

HER HONOUR:   I do not intend making any orders.  It is a matter for you to proceed and make such application for any dispensation as you may care to, sir.

SBKC:   Thank you, your Honour.

HER HONOUR:   Very well.  The Court will adjourn.

AT 1.07 PM THE MATTER WAS CONCLUDED