Matson v Attorney-General

1. Leave be refused to the applicant to file and rely on his interlocutory application dated 13 February 2022.
2. Leave be refused to the applicant to re-open the hearing in respect of the interlocutory application for summary judgment filed by the respondents on 18 November 2021, in respect of which judgment was reserved on 10 February 2022.
3. The applicant pay the costs of the respondents, to be taxed if not otherwise agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER J: 1 As a preliminary observation, I note that these reasons for judgment should be read with the reasons in my judgment Matson v The Attorney-General of the Commonwealth of Australia (No 2) [2022] FCA 213 (Matson No 2). 2 On 11 June 2021 I relevantly ordered as follows: 2. No further material be filed in this proceeding without the leave of the Court, until further order. 3 On 18 November 2021 the respondents filed an interlocutory application for summary judgment in respect of the application for leave to appeal filed by Mr Matson on 15 March 2021. On the same day the parties appeared before me for case management, with Mr Matson represented at that hearing by Ms de Ferrari SC. After hearing the parties in respect of matters including the respondents' interlocutory application for summary judgment, I made case management orders taking the respondents' summary judgment application to hearing on 10 February 2022. 4 On 10 February 2022 I heard the respondents' summary judgment application, and reserved judgment. Mr Matson appeared by video as a litigant in person, and the respondents were represented by Counsel. 5 On 14 February 2022 the Federal Court Registry received correspondence from Mr Matson headed "Urgent Application". Attached to this correspondence was a proposed interlocutory application dated 13 February 2022. 6 Yesterday in Court the parties presented submissions concerning Mr Matson's proposed interlocutory application dated 13 February 2022. Ms de Ferrari SC appeared, stating that she appeared as amicus curiae and to provide some assistance to Mr Matson. As Ms de Ferrari stated that she had had difficulty communicating with Mr Matson, I temporarily adjourned Court to permit Mr Matson to speak with Ms de Ferrari over the Court's Microsoft Teams link. 7 After relevant discussions, the proposed orders pressed by Mr Matson were as follows: 1. Leave be granted to file the Applicant's interlocutory application dated 13 February 2022. 2. Leave be granted to "reopen" the Respondent's interlocutory application dated 18 November 2021 for further submissions and evidence. 3. A further hearing be listed for the Respondent's interlocutory application dated 18 November 2021, at a date to be fixed. 4. The requirement that the Applicant be granted leave to file a Notice of Appeal in proceeding QUD83/2021 be dispenced [sic]. 5. Leave be granted for the applicant to file an amended Notice of Appeal in proceeding QUD83/2021 by a date to be fixed. 6. An interlocutory injunction to restrain the Federal Court of Australia from delivering judgment in respect of the Respondent's interlocutory application dated 18 November 2021 pending the hearing and determination of this interlocutory application and any appeals thereof. 7. … 8. Proceeding QUD83/2021 be listed for further case management with appeal proceeding QUD356/2020, at a date to be fixed. 9. Pursuant to the Federal Court of Australia "Impercunious [sic] Litigant Policy" the Applicant be provided copies of the following transcripts: … 10. Liberty to apply. 11. Costs reserved. 8 In light of my order of 11 June 2021, it was not in dispute that Mr Matson required leave of the Court in order to rely on the interlocutory application dated 13 February 2022. The respondents opposed the grant of leave. Ms de Ferrari submitted that the key issues before the Court concerned the proper disposition of proposed orders 1 and 2, in circumstances where proposed orders 3, 4, 5 and 8 were fundamentally timetabling orders, and proposed order 6 would follow on from the outcome of the application for relief in proposed orders 1 and 2. 9 I further note that proposed order 7, which was not pressed by Mr Matson, was as follows: 7. The Honourable Justice Collier recuse herself from presiding over proceeding QUD 83/2021. 10 In summary, Mr Matson submitted that leave should be granted permitting him to rely on the interlocutory application, and the respondent's summary judgment application ought be re-opened, because: There was no order allowing me to exercise appellate jurisdiction in this matter; Mr Matson was disadvantaged as a litigant in person when confronted by the complex legal issue of whether he was entitled to appeal from the primary judgment in Matson v Attorney-General of the Commonwealth of Australia [2021] FCA 161, or required leave to appeal; An important issue in the case was whether the Attorney-General was wrong in considering that he did not have power to reconsider the extradition determination under s 22 of the Extradition Act 1988 (Cth) involving Mr Matson; Authorities such as Minister for Immigration and Border Protection v Makasa [2021] HCA 1 and BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91 were relevant in respect of the powers of the Attorney-General; The respondent's application for summary judgment should not have been brought in the way it was against an unrepresented litigant; Mr Matson was led astray in terms of filing and applying for leave to appeal when it was unnecessary. 11 Mr McKechnie for the respondents submitted, in summary: It was not in the interests of justice for the matter to be re-opened; Judgment in the summary judgment application has been reserved, and it is important that there be finality in litigation which weighs against re-opening; The Court can readily infer that repeated applications by Mr Matson to "reopen" are simply a tactic on his part to delay proceedings; There has been repeated failure by Mr Matson to comply with orders of the Court; Re-opening the proceedings would be contrary to the overarching principle of s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). 12 In my view Mr Matson should not be granted leave to rely on the interlocutory application dated 13 February 2022. Further I consider that leave to reopen the proceedings should be refused. 13 I have formed this view for the following reasons. 14 First, for reasons I explain in further detail in Matson No 2 I am satisfied that, as a Judge of the Federal Court of Australia case managing the appeal in QUD83 of 2021, I have power pursuant to s 25(2B)(aa) of the Federal Court Act to determine the respondents' summary judgment application. In my view, Ms de Ferrari's submission concerning the absence of an order allowing me to exercise appellate jurisdiction has no merit. 15 Second, in respect of the question of leave being granted, the interests of justice is the key consideration for the Court. Section 37M of the Federal Court Act requires that disputes be resolved justly, according to law, and as quickly, inexpensively and efficiently as possible. In considering the interests of justice in the context of whether to grant Mr Matson leave in respect of his interlocutory application, the real issue is whether the Court would be minded to grant leave to reopen the proceedings notwithstanding that judgment has been reserved in respect of the respondents' summary judgment application. 16 Third, as the primary Judge correctly observed in Matson v Attorney-General (Cth) [2021] FCA 161: 178. The principles on which the Court acts when considering an application to reopen a matter before the delivery of judgment are settled. The overriding principle is the interests of the administration of justice having regard to the circumstances of the case: Inspector‑General in Bankruptcy v Bradshaw [2006] FCA 22 at [24], [26]; Brown v Petranker (1991) 22 NSWLR 717 at 729; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478; Harrington Smith (on behalf of the Wongatha People) v Western Australia (No 8) [2004] FCA 338, (2004) 207 ALR 483 [121]; and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456, (2014) 243 IR 468 at [48]. 179. In Bradshaw, Kenny J identified at [24] four overlapping classes of cases in which a court may grant leave to reopen: fresh evidence; inadvertent error; mistaken apprehension of the facts; and mistaken apprehension of the law. The applicant's present application seems to be in the first and fourth of these categories. 180. The matters bearing on the interest of justice are various. They include: • the public interest (and the interests of the particular parties) in litigation being conducted efficiently and expeditiously; • the public interest in the finality of litigation, with the consequent expectation that litigants will present all their evidence and submissions at the one hearing; • the significance of the proposed new evidence and submissions in the context of the hearing • the explanation for the evidence not having been led at the trial; • the likely prejudice to the opposing party if the application is allowed; • the potential detriment to the applying party if the application is refused; and • any delay by an applicant in seeking leave to reopen. 181. Regard should also be had generally to the overarching purpose of the Court's civil practice and procedure provisions stated in ss 37M and 37N of the FCA Act. 17 In the present case the arguments put to me by Ms de Ferrari yesterday in respect of the necessity for leave to appeal, and the issue of whether the Attorney-General had power to reconsider a s 22 extradition determination, were canvassed at length in the course of the hearing of 10 February 2022. I have dealt with those arguments in detail in my reasons for decision in Matson No 2. Mr Matson himself made detailed submissions in respect of these issues at that hearing. The submissions in court yesterday added nothing to submissions that were made to me on 10 February 2022 by Mr Matson in person and by Counsel for the respondents. 18 Fourth, I note the written submissions of Mr Matson which are on the Court file, although they were not read in Court yesterday. I note however that in those submissions Mr Matson asserted, in summary: inadvertent error, being alleged failure by the Court to provide him a copy of a transcript of 4 February 2021; he was not properly heard on 10 February 2022; he was denied procedural fairness on 10 February 2022; and the interests of justice support re-opening of the proceedings. 19 To the extent that Mr Matson currently relies on these written submissions for leave, in my view they lack merit, because: I am unable to identify in the absence of further explanation (which was not offered at the hearing yesterday) how any alleged "inadvertent error" by the Court in respect of the provision of a transcript in other proceedings should result in such a denial of justice that the reopening of the present proceedings is warranted. I further note in any event my understanding that the Court has provided extensive transcript material to Mr Matson as an impecunious litigant, and that according to Court records the transcript of 4 February 2021 in QUD254 of 2020 was emailed to Mr Matson's then-legal representatives on 30 July 2021 by Auscript pursuant to an order by me of 27 July 2021. Mr Matson's written submissions concerning the alleged failure of the Court to properly hear him on 10 February 2022 are fundamentally a reprise of arguments before the primary Judge in Matson v Attorney-General (Cth) [2021] FCA 161. I agree with the respondents that the arguments Mr Matson seeks to make would be further futile attempts by him to canvass points previously raised either before me or the primary Judge. Mr Matson's claim of denial of procedural fairness concerned a request for an adjournment to appear in person. For reasons I explained in Matson No 2 I was not persuaded that it was appropriate to adjourn the proceedings for the purpose of allowing Mr Matson to appear in person or to instruct Counsel. I am not persuaded that the interests of justice are better served by reopening the proceedings. 20 Fifth, as I have made clear in Matson No 2, error, misapprehension of law, or otherwise on the part of Mr Matson in seeking leave to appeal (when he argues that he was entitled to appeal as of right from the decision in Matson v Attorney-General (Cth) [2021] FCA 161) are irrelevant in circumstances where the respondents' summary judgment application claimed no prospect of success in respect of either the leave application or Mr Matson's proposed grounds of appeal. 21 Sixth, Makasa and BDS20 were both cases involving exercise of powers by the relevant Minister in respect of cancellation of visa decisions under s 501(2) of the Migration Act 1958 (Cth). In Makasa, the High Court found that once exercised in respect of facts constituting a failure to pass the character test to decide not to cancel a visa, the power conferred on the Minister by s 501(2) of the Migration Act could not be re-exercised in respect of the same failure to pass the character test to decide to cancel the visa. I am not assisted by references to decisions concerning not only different legislation, but entirely different Ministerial powers. 22 Seventh, I disagree with Mr Matson that reopening the proceedings would cause "minimal (if any) embarrassment or prejudice to the Respondents". Rather, I accept the submission of the respondents that there is prejudice to the respondents in the ongoing delay in the proceedings, given Australia's international law and treaty obligations. 23 The principle of finality of litigation requires that the respondents' summary judgment application already heard by the Court proceed to judgment. Mr Matson has had ample opportunity to be heard, both in person and through Counsel, in respect of that application. 24 The appropriate course is to refuse the relief sought in proposed orders 1 and 2 of Mr Matson's interlocutory application dated 13 February 2022. It follows that the timetabling orders sought in proposed orders 3, 4, 5 and 8 should similarly be refused. Finally, there is no reason for the Court to stay the delivery of judgment in respect of the respondent's summary judgment application, as sought in proposed order 6. 25 Costs should follow the event. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.