O'Donoghue v Attorney-General for the Commonwealth of Australia

INTRODUCTION 1 This is one of a number of proceedings pursued by Mr O'Donoghue against, amongst others, the Attorney-General for the Commonwealth of Australia and the Minister for Immigration and Citizenship (I will refer to them collectively as the Commonwealth). The second respondent has filed a submitting notice in the proceeding. 2 The Commonwealth has applied for summary judgment against Mr O'Donoghue pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA) and r 26.01(1) of the Federal Court Rules 2011 (Cth) (the Rules). There is a supporting affidavit of Mr Corbould, the Commonwealth's instructing solicitor. 3 On 4 April 2013, Mr O'Donoghue filed an originating application in this Court for an injunction restraining the Commonwealth from taking any action to remove or to permit his removal from Australia pending determination of other proceedings which he had brought in various courts. On 5 and 8 April 2013, I heard and dismissed Mr O'Donoghue's urgent interlocutory application for and injunction with costs: O'Donoghue v Attorney-General for the Commonwealth of Australia [2013] FCA 319. Mr O'Donoghue sought leave to appeal from my refusal to grant an injunction. That application was heard the following day by Siopis J who dismissed Mr O'Donoghue's application for leave to appeal and ordered him to pay the respondents' costs: O'Donoghue v Attorney-General for the Commonwealth of Australia [2013] FCA 382. 4 On the following day, Mr O'Donoghue was surrendered to Ireland pursuant to a surrender warrant under s 23 of the Extradition Act 1988 (Cth). He was removed from Australia. Following his departure from Australia, Mr O'Donoghue has been held at Cloverhill Prison in Dublin. 5 On 7 May 2013, solicitors for the Commonwealth, the Australian Government Solicitor (the AGS), wrote to Mr O'Donoghue at Cloverhill Prison seeking his consent to the dismissal of his application in light of the fact that he had already been extradited. His proceeding had simply sought the injunction and no other relief. In that correspondence, the point was made that Mr O'Donoghue's substantive application for an injunction, as distinct from an interlocutory injunction, remained on foot but in light of his extradition to Ireland the proceedings were otiose. The AGS sought his consent to the making of an order formally dismissing the application. His consent was not obtained. Mr O'Donoghue was also informed in that letter that if the consent was not forthcoming, a summary judgment application would be pursued together with costs. 6 On 18 June 2013, the AGS advised Mr O'Donoghue that the Commonwealth was prepared to accommodate his request for more time to consider his position but that an application would be made for summary judgment in the event that he did not sign and return a consent to the dismissal of his application by 30 June 2013. The AGS also brought to Mr O'Donoghue's attention r 11.01 of the Rules in relation to filing a notice of change of address for service. 7 Mr O'Donoghue, by a letter dated 26 June 2013 from Cloverhill Prison, requested that his matter be adjourned sine die while he remained in custody. In a further letter of 28 June 2013, he raised objection to being requested to consent to the dismissal of the matter. 8 As no consent to dismissal was forthcoming and as Mr O'Donoghue has been removed from Australia, the Commonwealth pursued its application for orders under s 31A(2) FCA and r 26.01(1) of the Rules for the application to be dismissed with costs on the grounds that: (a) Mr O'Donoghue has no reasonable prospect of successfully prosecuting the proceeding; (b) the proceeding is frivolous or vexatious; (c) no reasonable cause of action is disclosed; and (d) the proceeding is an abuse of the process of the Court. 9 The Commonwealth filed its outline of submissions on 10 July 2013. Mr O'Donoghue made a further request for an adjournment sine die of the proceedings. The matter was listed for directions on 31 July 2013. I formed the view that there was no utility in granting a further adjournment of the matter because no prejudice would be sustained by giving Mr O'Donoghue the opportunity to file submissions and any affidavit material in response to the Commonwealth's summary judgment application and submissions. 10 I gave Mr O'Donoghue 14 days to do so. No material has been filed by Mr O'Donoghue as at the time of publishing this judgment. 11 I also made orders for the Commonwealth's application for summary judgment to be determined on the papers.