Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: 1 This is an application pursuant to O 52 r 10 of the Federal Court Rules ("the Rules") for leave to appeal from an interlocutory judgment of the Court. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) ("the Act") provides that an appeal shall not be brought from an interlocutory judgment of the Court unless the Court or a Judge gives leave to appeal. Section 4 of the Act defines "judgment" as "a judgment, decree or order, whether final or interlocutory, or a sentence". In terms O 52 r 1 of the Rules repeats that definition. 2 The applicant was represented by counsel appointed pro bono publico pursuant to the provisions of O 80 of the Rules. Counsel addressed a threshold issue as to the competency of the application, namely, whether a judgment had been pronounced by the Court in respect of which leave to appeal may be obtained under O 52 r 10. 3 The word "judgment" as used in O 52 r 10 may be taken to refer to an "operative judicial act". (See: Driclad Pty Ltd v Commissioner of Taxation (1968) 121 CLR 45 per Barwick CJ, Kitto J at 64). A judgment as defined in s 4 of the Act has the same meaning as "judgments, decrees, orders and sentences" used in s 73 of the Constitution, namely, a formal order made by a court which disposes of, or deals with, the proceeding then before it. (See: Moller v Roy (1975) 132 CLR 622 per Mason J at 639). Section 73 is confined to decisions made in the exercise of judicial power (See: Mobil Oil Australia Pty Ltd v Victoria (2002)76 ALJR 926 per Gaudron, Gummow, Hayne JJ at [63]; Consolidated Press Limited v Australian Journalists' Association (1947) 73 CLR 549; Director of Public Prosecutions (SA) v B (1998) 194 CLR 566 per Gaudron, Gummow, Hayne JJ at [9]-[10]). 4 As Barwick CJ said in Minister for Works for the Government of Western Australia v Civil and Civic Pty Limited (1967) 116 CLR 273 at 277: "It is of the essence of a judgment within the meaning of the Constitution that it is binding upon parties and definitive of legal rights. It is not enough that the judge or Court exercises a jurisdiction of the Supreme Court in a matter judicial in its substance. The judge or Court must authorizedly give a binding judgment which determines or settles rights." 5 The extent to which a judgment defines legal rights may be, of course, a question of construction of the terms of the judgment. (See: Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395 per Toohey J at 400-402). Whether a bare determination by a Judge not to accede to a request for recusal made by a party to a proceeding can be said to define a right and, thereby, constitute a judgment is an issue for which there is opposing authority. (See: Brooks v Upjohn Company (1998) 85 FCR 469, 472-476; Barton v Walker [1979] 2 NSWLR 740, 749; The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248, 266). It is to be noted that in Brooks formal orders were made on a notice of motion filed by the party seeking the recusal. 6 In the instant matter the applicant seeks leave to appeal from a direction by a Judge of the Court to the Registrar pursuant to O 46 r 7A of the Rules that the Registrar refuse to accept an application presented by the applicant for issue by the Registrar as an "originating document". 7 The Registrar had sought the direction of the Judge by a memorandum addressed to the Judge in the following terms: "Mr Tafese Bizuneh attended the Registry today and submitted for filing the accompanying application and affidavit (Tab 'A') in support sworn 8 October 2002. The application is made by Mr Tafese Bizuneh against the Minister for Immigration and Multicultural and Indigenous Affairs and is claiming, amongst other things, that his individual rights have been affected in what he states in the application as 'crimes against humanity, constitutional error and denial of procedural fairness and natural justice'. This application is in most respects the same as the earlier application and affidavit (Tab "B") in support that Deputy District Registrar Quilter referred to you on 8 October 2002 and was the subject of your direction on 9 October 2002 that the Registrar pursuant to Order 46 rule 7a(b) refuse to accept the application in its present form. The fresh application refers to the sections 91R(c), 321, 377, 439 and 459 of the Migration Act 1958 and the Codes of Crimes, International Law Commission. In my discussion with Mr Bizuneh he indicated that since his release from Villawood Migration Detention Centre he was granted a bridging visa E that includes the following restrictions: (a) no work; (b) no study and (c) that he is required to inform the Department of Immigration of any change of address. His main claim its [sic] seems is to obtain a work permit. The application is, in substance, a complaint about the Executive Government and a member of it. It appears that no justiciable legal controversy is identified. The application on its face appears to be an abuse of process of the Court. The application and affidavit are referred for your consideration pursuant to Order 46 Rule 7A." 8 On or about 16 October 2002 the Judge made a handwritten endorsement on the memorandum as follows: "I agree. I direct the Registrar to refuse to accept the application in this form or any substantially similar form." 9 The document presented by the applicant to the Registrar contained the following under the heading "Details of Claim": "On the grounds stated in the accompanying affidavit, the applicant claims: