Further evidence
20 By a notice of motion dated 10 November 2010, Mr O'Donoghue sought an adjournment of his appeal hearing accompanied by an application for leave to issue subpoenas to Mr Stephen Maclean, Mr Halim Rane, Senator Chris Evans and the Hon Kevin Rudd MP. The relevance of these subpoenas was said to be that all those persons were involved in some way in the circumstances giving rise to the estoppel which this appeal is based.
21 An affidavit in support of the motion asserts that Mr O'Donoghue relied upon assurances and undertakings given to him by the Minister, that he had suffered detriment as a consequence of that reliance and that the Minister is estopped from denying his permanent residency visa.
22 Mr O'Donoghue asserts that the Minister acquiesced in Mr O'Donoghue's inability to work for Hope Lawyers, that he altered his work conditions and waived the requirements to work for Hope Lawyers, that Mr O'Donoghue could have sought a replacement sponsor and that in order to establish the bona fides of the Minister it is necessary to adduce evidence from Mr Maclean, Mr Rane, Senator Evans and the Hon K Rudd MP, the Prime Minister of Australia at the relevant time.
23 Although the topic was addressed in general terms in oral submissions and in written submissions in reply, Mr O'Donoghue's affidavit and submissions say little as to the nature of the evidence he seeks to adduce from those persons and why an adjournment of the appeal hearing is necessary to adduce evidence from those persons.
24 Section 27 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) provides that a Court shall have regard to the evidence given in the proceedings out of which the appeal arose. The Court has power to draw inferences of fact and also has a discretion to receive further evidence. The evidence may be taken on affidavit, by oral examination before the Court or a judge or otherwise in accordance with s 46 of the Federal Court Act.
25 In Guss v Johnstone [2000] FCA 1455 Sackville J, with whom Drummond and Dowsett JJ agreed, stressed that it was ordinarily necessary for a party seeking to adduce further evidence to demonstrate that the evidence relied upon was cogent, that is, that the Court exercising appellate jurisdiction needs to be satisfied that the proffered evidence would be likely to have produced a different result had it been available at trial. (See also the majority judgment in CDJ v VAJ (1998) 197 CLR 172).
26 In NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24, which was cited with approval by Nicholson J in WAMB v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 66, Beaumont, Lindgren and Tamberlin JJ said (at [42]):
[42] In order for an appellate court to receive further evidence, two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, 'probability', and at the highest, 'certainty', of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 ('of such importance as very probably to influence the decision' and 'of such weight as, if believed, would probably have an important influence on the result'); Orr v Holmes at 636 ('high degree of probability that the admission of the new evidence would result in a different verdict'); Florance v Andrew (1985) 58 ALR 377 at 381 ('such a different complexion on the case that a reversal of the former result ought certainly to ensue'); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) 'almost certain that …, an opposite result would have been reached by the primary judge').
27 There is no indication in the materials relied upon by Mr O'Donoghue or in argument to make clear what evidence the individuals named in the subpoenas would give which could possibly assist his case. To the contrary, the impression given is that it is a fishing exercise.
28 Without any demonstrated factual foundation, Mr O'Donoghue in reply says that the Minister has failed to explain why his visa was cancelled after a period of six years and has demonstrated mala fides in cancelling the visa when he did. He contends that in cancelling his visa the Minister 'colluded, collaborated and conspired' with other Government departments and Government ministers and agents to frustrate the rule of law, natural justice and his right to the proper protection of his fundamental human rights and those of his children. He argues that this conduct breaches the criminal code and that the persons he wishes to subpoena are complicit in a criminal conspiracy.
29 Mr O'Donoghue says that his visa was cancelled a very short time after he commenced correspondence with the then Prime Minister of Australia, the Hon K Rudd MP, in regards to his case. He makes similar allegations against the corrupt practices of the police force in Ireland.
30 In my view, there is no support for those sweeping generalisations.
31 Further, the application falls short procedurally of the requirements of O 52 r 36 of the Federal Court Rules but it is sufficient to say that on the substantive grounds going to the nature of the evidence sought to be adduced, that leave should not be granted.