ARU17 v Minister for Immigration, Citizenship and Multicultural Affairs

leave to amend 7 In Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 at [8], Stone J set out the long-established principles relating to granting leave to amend: The general principle is that leave to amend should be granted unless the proposed amendment is obviously futile or would cause substantial prejudice or injustice which could not be compensated for. These considerations require the court to take account of the nature of the proposed amendment, whether it is made in good faith, the stage in the proceedings at which leave is sought, the nature of the prejudice that may be caused and the means by which such prejudice might be redressed. The question of delay is relevant to these considerations however it is not the purpose of the court to punish a party for delay in seeking an amendment. 8 Medich was cited with approval in SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 at [48], where Gleeson J confirmed the principles for leave to amend insofar as it relates to migration applications: Generally speaking, the exercise of the FCCA's powers requires that parties are given a proper opportunity to conduct their case. Leave to amend will be refused if it is obviously futile: cf. Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 at [8]. In particular, leave to amend will be refused in respect of a pleading that was liable to be struck out: Research in Motion Ltd v Samsung Electronics Australia Pty Limited [2009] FCA 320;(2009) 176 FCR 66 ("Research in Motion") at [21] to [22]; Wotton v State of Queensland [2015] FCA 910 at [59]. However, a just resolution of proceedings does not require that a party be permitted to raise any arguable case at any point in the proceeding: cf.Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27;(2009) 239 CLR 175 ("Aon") at [98]. 9 When a question of leave to amend arises in a migration proceeding, particular sensitivity is given to the consideration of interests of justice as an adverse decision may have very serious consequences for the applicant, especially where a deprivation of liberty is concerned: CGA15 v Minister for Home Affairs (2019) 268 FCR 362; [2019] FCAFC 46 (Murphy, Mortimer as her Honour then was and O'Callaghan JJ); ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25] (Mortimer J, as her Honour then was).

Whether Mr Hawke should be joined as a party to the proceeding and answer interrogatories 10 It is necessary to consider the context in which the applicant seeks to join Mr Hawke to these proceedings. Mr Hawke was the officeholder of the Minister from 22 December 2020 to 23 May 2022. The current officeholder is The Honourable Andrew Giles MP (Mr Giles), who commenced on 1 June 2022. The applicant, in his First Interlocutory Application, sought that the Minister give discovery and answer interrogatories relating to his determination of the Decision. At the time the First Interlocutory Application was filed, Mr Hawke held the office of the Minister. 11 No relief is claimed against Mr Hawke personally, and as the applicant submitted, the only purpose in seeking to have Mr Hawke joined in these proceedings is so that he answer interrogatories personally. 12 Rule r 9.05 of the Federal Court Rules 2011 (Cth) is concerned with the joinder of parties, and provides: 9.05 Joinder of parties by Court order (1) A party may apply to the Court for an order that a person be joined as a party to the proceeding if the person: (a) ought to have been joined as a party to the proceeding; or is a person: (i) whose cooperation might be required to enforce a judgment; or (ii) whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined; or (iii) who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings. (2) A person must not be added as an applicant without the person's consent. (3) If a person is joined as a party under this rule, the start date of the proceeding for the person is the date on which the order is made. (4) An application under subrule (1) need not be served on any person who was not served with a copy of the originating application. Note: The Court may make an order for any of the following: (a) service of the order and any other document in the proceeding; (b) amendment of a document in the proceeding; (c) the filing of a notice of address for service by a party. 13 In CEU22 v Minister for Home Affairs [2022] FCA 1328 (Snaden J) a similar issue was considered. In that case the Minister at the time, the Honourable Karen Andrews MP (Ms Andrews), personally made a decision to cancel the applicant's visa. Ms Andrews left office sometime after the making of that decision. A Registrar of the Court made orders that the Minister provide answers to interrogatories. They were answered by way of an affidavit sworn by a solicitor, which annexed a letter whereby the interrogatories were put to Ms Andrews and her responses were provided, most of which stated that she was unable to recall any details. The applicant considered the answers provided to be insufficient, and hence sought further orders requiring Ms Andrews to either attend Court to be orally interrogated or personally affirm an affidavit verifying sufficient answers to the interrogatories. His Honour, in dismissing the interlocutory application, observed at [24]-[25]: That Ms Andrews occupied the ministry now held by the respondent - and did so when each of the Cancellation Decision, the application for judicial review of that decision and the application for orders requiring answers to interrogatories were made - is of no moment. She was not a party when the registrar's orders were made and, most importantly, is not now a party to the present matter. That last reality, though not apparently controversial, is worthy of analysis. It is well-established that, where a challenge is mounted against a decision made by the holder of an executive office, it should be mounted against that office, rather than against the individual who held it at the time: Kerr v Cmr of Police and Crown Employees Appeal Board [1977] 2 NSWLR 721 , 724-725 (Moffitt P, Hope and Samuels JJA agreeing). If, as has occurred here, the holder of the office changes, the challenge so mounted continues as against the office (as opposed to the individual who succeeds thereto): Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 , 529 [31] (McHugh J, with whom Kirby J agreed at 552 [111]). 14 The applicant considered that the ratio of CEU22 was that Ms Andrews should not be required to answer interrogatories because she was not a party to the proceeding. He foreshadowed arguing that CEU22 is plainly wrong at a future interlocutory stage if he considers that Mr Hawke, having been ordered to answer interrogatories, provides answers that are insufficient. In the application presently before the Court, CEU22 is only relevant insofar as it relates to whether or not Mr Hawke should be joined as a party to the proceeding. 15 The applicant relied on r 9.05(1)(b)(i) of the Rules as the basis for joining Mr Hawke to the proceeding. Fastening upon the word "cooperation" in the Rule, he described it as the "cooperation rule" and distinguished it from r 9.05(b)(ii) which he described as the "necessity rule". He submitted that the joinder of Mr Hawke was essential as his cooperation might be required to enforce a judgment. The applicant also referred to r 9.02 of the Rules as a basis for joining Mr Hawke but advanced no submissions in that regard. 16 The primary answer to the applicant's arguments pertaining to what he characterises as the "cooperation rule" is that Mr Hawke's cooperation is not required to enforce judgment in this matter, especially so when all the orders sought in the draft Further Amended Originating Application are against the Minister as an officeholder, as opposed to personally. As the Minister correctly submitted, were an order to be made that the Minister's decision be quashed and that the matter be redetermined, the person to whom that relief will be directed is the Minister in office not any previous Minister. 17 Insofar as the word "judgment" in r 9.05(1)(b)(ii) might be read to include "interlocutory judgment", as was submitted by the applicant, I am also not satisfied that joinder is necessary for enforcement of any interlocutory judgment. 18 The limited circumstances in which a party might be joined where there is no identifiable cause of action against that person were considered by Rares J in TWW Yachts v The Yacht "Loretta" (No 3) [2021] FCA 498 at [21] where his Honour stated as follows: In my opinion, the purpose of r 9.05(1)(b)(i) was to overcome a particular problem that might occur if a non-party in control of property or of a corporation the subject of a final order or judgment made by the Court was able, effectively, to frustrate enforcement of that order or judgment at a time when the proceeding was otherwise complete. The rule permits the Court to order that a person described in r 9.05(1)(b)(i) be made a party even though no identifiable course of action might exist against the person. 19 The interrogatories and discovery already sought in the First Interlocutory Application are directed to the Minister. Section 20 of the Acts Interpretation Act 1901 (Cth) states: 20 References to holders of appointments, offices and positions in Acts and Commonwealth agreements In a provision of an Act, or of an agreement entered into by or on behalf of the Commonwealth, a reference in general terms to the holder or occupier of an office, appointment or position includes all persons who for the time being: (a) hold or occupy the office, appointment or position; or (b) perform the duties of the office, appointment or position. 20 Therefore, Mr Giles as the officeholder of the Minister is the person to whom the orders are directed. As contemplated in Derham v A M E V Life Insurance Co Ltd (1978) 20 ACTR 23 at 27 (Blackburn CJ), a party subject to interrogatories "…must make all reasonable inquiries of its servants and agents, including, within the limits set by the principle of oppressiveness, those who were its agents at the material time but are no longer." It can be reasonably concluded therefore that the Minister would seek answers to the interrogatories from Mr Hawke personally, as was the case in CEU22. Further, any argument advanced about the potential inadequacy of answers is speculative. 21 Accepting that interrogatories are a form of discovery, it is well established that joining a person only for the purpose of obtaining discovery is improper: Gould v National Provincial Bank [1960] Ch 337 at 341 and 345 (Russel J); Wilson v Church (1878) 9 Ch D 552 (Jessel MR); Burstall v Beyfus (1884) 26 Ch D 35 (Earl of Selborne LC and Cotton LJ). Those cases have since been followed in Australia: Nicholls v McLeahy (1971) 1 SASR 442 at 445 (Chamberlain J); National Companies & Securities Commission v Monsoon Nominees Pty Ltd (1990) 3 ACSR 491 at 493, 498 (Malcolm CJ, Wallace and Rowland JJ); Rigby and Kingston [2020] FamCA 415 at [39]-[44] (Carew J). The applicant submitted that these cases should be distinguished. 22 Turning to Wilson v Church, the applicant contended that there was nothing to indicate that this case involved a joinder provision let alone one invoking the "cooperation rule" upon which he relied. He further submitted that it involved a different fact scenario also rendering it distinguishable from the present application. According to the applicant, Wilson v Church at 612 provides a history of the legislation relating to discovery, emanating as it did in the courts of equity which he submitted incorporated a principle of discovery for the purposes of cooperation. The applicant submitted that when the legislature empowered the courts of law to order discovery, the principle of discovery for necessity was adopted but that of cooperation was omitted. It is on this basis that the applicant submitted that Wilson v Church, was decided on the basis of the legislation, did not rely upon the "cooperation rule", and hence was of no relevance to this case and did not assist the Minister. 23 Similarly, the applicant contended that Burstal v Beyfus is not applicable as it is not based on analogous facts and involved a different legislative framework from that applicable to the current application, and that Gould v National Provincial Bank was also distinguishable as it only relied on the "necessity rule". As to Rigby, the applicant sought to distinguish it on the basis that it didn't deal with the "cooperation rule" upon which he relied, and in any case was irrelevant, given it was a family law case and referred to rr 6.02 and 6.03 of the Family Law Rules 2004 (Cth). 24 The applicant contended that Nicholls v McLeay at 445 provided support for his argument as the court distinguished Wilson v Church and Burstall v Beyfus based on the "cooperation rule" as follows: Amongst the cases cited to me were Wilson v. Church; Burstall v. Beyfus; Burchard v. MacFarlane; Ex parte Tindall; Gould v. National Provincial Bank Ltd., but in all of these cases substantive relief was either not sought or not available against the party against whom discovery was claimed. I respectfully agree that it would be an abuse of process to join a party against whom no substantive relief could possibly be obtained simply for the purpose of obtaining discovery, although even this proposition does not appear to be universally accepted. See for example Penfold v. Pearlberg, where Roxburgh J. made an order for inspection of property in the possession of a local authority not a party, subject to the local authority's consent, adding that that consent would no doubt be forthcoming because otherwise it might be joined as a party "solely for the purpose of getting inspection" and with a considerable possibility of having to pay costs. This dictum appears to have been made to encourage the local authority to co-operate, and it may have been effective for that purpose although out of line with other authorities. 25 The applicant also sought to distinguish National Companies on the basis that it was one of the parties, not the Court, which relied on Burstall v Beyfus, and, as discussed below, submitted that the case assisted the applicant. As further support for his position, the applicant referred the Court to one of the cases cited in National Companies, namely, McLean v Bums Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623, which states at 647: For instance, it has been held by Waddell J in E M I (Australia) Ltd v Bay Imports Pty Ltd [1980] FSR Vol 6 328 at 331 that the Court may order discovery in relation to a claim for final relief so that that claim can be dealt with properly and justly. 26 The basis upon which the applicant distinguished the Minister's authorities is not accepted. Rather than the cases being distinguishable based on the "cooperation rule", they are simply authority for the fundamental and well accepted principle that a party should not be joined to enable discovery against him or her, and to do so is an abuse of process. As the Minister pointed out, the Rules provide a mechanism for non-parties to produce documents by way of a subpoena, but that comes with the obligation to pay conduct money, in respect of which there should not be a mechanism which allows that obligation to be circumvented, and which in any case must not be improperly used as a means of obtaining discovery. Furthermore, r 20.23 of the Rules already makes specific provision for limited discovery against non-parties. They too should not be able to be circumvented by the joinder of a non-party. 27 Gould v National Provincial Bank at 545 makes it clear that parties ought not be joined for the purpose of discovery. Earlier judgments, as cited in that case, enunciate the same principle: Heatley v Newton (1881) 19 Ch D 326 (Jessel MR, Baggallay, Lindley and Lush LJJ); Cod v Delap [1906] WN 57. As to McLean, the Minister correctly submitted that as discussed by Young J, the discovery sought in that case was not pursuant to the rules, but rather what was sought was a bill of discovery pursuant to the court's inherent power or its power under the Supreme Court Act 1970 (NSW) "to make all such orders as are necessary for the administration of justice in New South Wales". It was therefore "made under the old bill of discovery procedure" which the applicant in that case argued was in line with the House of Lords decision of Norwich Pharmaceutical Co v Customs and Excise Commissioners [1974] AC 133, a case in which the plaintiff sought to establish the names of potential defendants. The Minister's submissions, with which I agree, were that a different application would need to be made which might involve an argument as to whether such an application could be made in this Court, lacking as it does the inherent jurisdiction possessed by the Supreme Court of New South Wales. Therefore, McLean does not assist the applicant's position. 28 Whilst the applicant considered that National Companies assists his case, on the basis that Malcolm CJ stated that "an action for discovery will lie against a person who has been involved in the acts of a wrongdoer" the Minister correctly submitted that while his Honour refers to McLean and Norwich, he does so "in a limited way", namely by confining the circumstances where "discovery will lie" to those where "if without discovery, no action could be instituted or successfully maintained" (emphasis added). In any case, his Honour, and the court, concluded at 497 that the party was "a necessary and proper party". As the Minister submitted, in this case there is no doubt as to the name of the respondent party and, as is clear, the applicant has already been able to institute proceedings. 29 I am not satisfied that the "cooperation rule" applies to the joinder of Mr Hawke, nor do I consider that the Minister's authorities can be distinguished on the basis that they don't contemplate the "cooperation rule". Accordingly, I am not satisfied that Mr Hawke should be joined as a party pursuant to r 9.05(1)(b)(i) of the Rules. 30 The applicant did not rely on any other subsection of r 9.05 of the Rules as the basis for joining Mr Hawke to the proceeding, however I will make some brief comments as to why I do not think that course to be appropriate in any event. 31 In News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 (Lockhart, von Doussa and Sackville JJ), approved by the High Court in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd; Walker Corp Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 (French CJ, Gummow, Hayne, Heydon and Kiefel JJ), the following was said regarding the requirement that there be direct rights or liabilities against a party to a proceeding when a person is being joined: Where, before trial, a question arises whether a necessary party has been joined, attention should be directed to the orders sought in the proceedings. It is the effect of the orders upon the third party that must be determined. The test is not whether the conduct of the third party is raised in the pleadings between the existing parties, or whether the third party is a party to a contract, the meaning or effect of which is pleaded as a matter relevant to the ascertainment of the rights between those parties. 32 As has already been canvassed above the relief sought by the applicant is only directed to the Minister as opposed to Mr Hawke personally. I am not satisfied that there are any rights or liabilities which may be affected if he were not joined to the proceeding. 33 The applicant submitted in the alternative that Mr Hawke should be joined pursuant to rr 1.32, 1.34 and 1.35 of the Rules, which provide: 1.32 Court may make any order it considers appropriate in the interests of justice The Court may make any order that the Court considers appropriate in the interests of justice. 1.34 Dispensing with compliance with Rules The Court may dispense with compliance with any of these Rules, either before or after the occasion for compliance arises. 1.35 Orders inconsistent with Rules The Court may make an order that is inconsistent with these Rules and in that event the order will prevail. 34 The applicant submitted that if insufficient answers were provided by Mr Hawke, it would be inherently unjust to the applicant not to join Mr Hawke as a party, which should be cured by exercising power pursuant to rr 1.32 or 1.35 of the Rules. The applicant further submitted that the circumstances of this case are unique, specific and peculiar and that this Court, as a superior court of record has the power to use the general rules in the manner for which he contends. I do not consider this to be an appropriate course of action. The Rules very clearly prescribe when an order should be made to join a person to a proceeding, and to attempt to circumvent those Rules by dispensing with them is improper. 35 As held in Survival & Industrial Equipment (Newcastle) Pty Ltd t/as SIE Liferaft Service v Owners of the Vessel 'Alley Cat' (1992) 36 FCR 129 (Sheppard J), the purpose of those Rules is not "…to confer power in the court which it otherwise would not have had… Its purpose is simply to enable the court in a proper case to relieve a party of an obligation to comply with particular provisions of the Rules, for instance, as to time or the filing of pleadings and such like." Even if that were not the case, I am not satisfied that exercising power in accordance with those Rules in necessary in the interests of justice. If the speculative submission that Mr Hawke will provide insufficient answers to the interrogatories is accepted, joining him as a party to the proceeding is unlikely to cure this. 36 Therefore, leave to file the Further Amended Originating Application is only granted with respect to the non-contentious amendments, and is refused insofar as it seeks to join Mr Hawke as a party to the proceeding. Given I am not satisfied that Mr Hawke should be joined as a party to the proceeding, it therefore follows that leave to file the Amended Interlocutory Application is granted with respect to the non-contentious amendments, and insofar as it sought orders requiring Mr Hawke as the proposed second respondent to answer interrogatories, is refused.

Whether Mr Hawke should answer interrogatories as a non-party 37 I am also not satisfied that the interrogatories should be asked of Mr Hawke as a non-party. 38 The applicant's draft Amended Interlocutory Application sought that Mr Hawke answer interrogatories pursuant to r 21.01(2) of the Rules, which provides: 21.01 Order for interrogatories (1) A party may apply to the Court for an order that another party provide written answers to interrogatories. (2) The application must be accompanied by an affidavit annexing the proposed interrogatories. 39 The applicant advanced the following arguments to support that even if not joined, Mr Hawke should be ordered to answer interrogatories. First, he submitted that the Minister relied on a "circular argument" in stating that only a party can answer interrogatories and as Mr Hawke is not a party he cannot answer interrogatories, and as such he should not be joined. That is not as I understood the Minister's argument - rather it was that Mr Hawke is not a proper party in any case, given the proper party is the Minister, therefore he cannot be ordered to answer interrogatories. Further, the applicant argued that CEU22 was not authority for the proposition that a non-party cannot be ordered to answer interrogatories; in fact, it supported his case as a Registrar ordered that a non-party answer interrogatories. Specifically, the applicant's oral submissions were: The second reason, your Honour, why the Minister's reliance on CEU22 doesn't assist his case is CEU22 doesn't stand as authority for the proposition that a non-party, such as a former Minister, cannot answer interrogatories. On the contrary. CEU22 proceeded on the very basis that a former Minister had been lawfully, I should say, lawfully ordered to answer interrogatories. That order was made by the registrar. The Minister chose never to appeal from that order, so that order stood. 40 However, a plain reading of CEU22 shows that the orders made by the Registrar were directed at "the respondent" rather than the Minister in her personal capacity. 41 Furthermore, the applicant argued that paragraph [27] of CEU22 did not assist the Minister's arguments as it pertains to r 21.04 of the Rules which is concerned with who swears or affirms the affidavit which verifies the answers to the interrogatories, which the applicant submitted is irrelevant to the present application. However, the preceding paragraph in CEU22 sets out the Minister's submission that "The Court has no power to require a non-party to the proceedings such as Mrs Andrews to answer interrogatories under Part 21", and his Honour then unequivocally states in paragraph [27] that he agrees with that submission. When reading the judgment as a whole, one cannot accept the applicant's argument, made contrary to his earlier submission as to the distillation of the ratio, that CEU22 is not authority for the proposition that a non-party cannot be ordered to answer interrogatories. 42 As the applicant did not advance an argument that CEU22 is plainly wrong, it ought be followed: BHP Billiton Iron Ore v The National Competition Council (2007) 162 FCR 234; [2007] FCAFC 157 at [88] (Sundberg, Finkelstein and Greenwood JJ). Accordingly, interrogatories ought not be directed to Mr Hawke as a non-party.

conclusion 43 I am not satisfied that Mr Hawke should be joined as a party to the proceeding pursuant to r 9.05(1)(b)(i) of the Rules. Nor am I satisfied that he should be joined as a party to the proceeding pursuant to rr 1.32 or 1.35. As such, it is therefore also futile for orders to be made requiring that Mr Hawke answer interrogatories personally, in circumstances where he is a non-party. The application is dismissed insofar as it relates to those two issues. As all other amendments are not opposed by the Minister, they shall be allowed. The applicant must pay the Minister's costs of and incidental to the interlocutory application. 44 As a matter of procedure, I also note that the Minister's title has changed to the Minister for Immigration, Citizenship and Multicultural Affairs. An order will be made to reflect this change. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher.