PD v President, Australian Human Rights Commission

ALLSOP CJ: 1 The applicant, who has been given an acronym pseudonym by reason of provisions of the Migration Act 1958 (Cth), has had a considerable body of litigation in the Court. Most relevantly for present purposes the applicant successfully challenged in 2018 in the original jurisdiction of the Court a decision of the Minister for Immigration and Border Protection to refuse a visa. The decision of the primary judge in the original jurisdiction was [PD] v Minister for Immigration and Border Protection [2018] FCA 62; 159 ALD 138. The Minister appealed from that decision and a five judge bench dismissed the appeal. That decision was handed down in June 2019: Minister for Home Affairs v [PD] [2019] FCAFC 98; 269 FCR 536. The Full Court ordered that the appellant pay the respondent's costs of the appeal. 2 It is necessary in order to understand some of the matters to which I will refer in a moment to appreciate that there were prior orders for costs in the Minister's favour against the current applicant who was the respondent to that appeal. Dr Francis, the principal of the firm Angus Francis Lawyers, prepared a bill of costs for submission to the Minister. By letter of 4 September 2019, Clayton Utz, acting on behalf of the Minister, asserted the Minister's right to set-off the outstanding debt to the Department of Home Affairs, it was expressed, of $80,259.79 against the costs payable to the applicant in the judicial review proceeding of $34,987.90. I am not sure whether the sum of $34,987.90 is the first instance costs or the appellate costs, but it does not matter for present purposes. Dr Francis thereafter, in a letter of 20 September 2019 to Clayton Utz, objected to the step taken for a number of reasons, not the least of which was the public interest in pro bono representation. The matter does not appear to have been taken any further. 3 In a joint list of issues helpfully prepared by the applicant and the Australian Human Rights Commission today, there is a request for pro bono referral for the applicant to obtain advice regarding both the conduct of this matter and also, as I would understand it, the conduct of the Minister in attempting to set-off the debt without first approaching the Court. I am prepared to make that pro bono referral and I also propose to refer the question of the asserted set-off to the court that ordered the costs, being the Full Court, and if any part of the costs relate to any costs awarded by Logan J at first instance, it may be necessary to refer the matter to Logan J too. In the first instance at least, it is appropriate that the members of the court who ordered the costs first consider the position rather than myself in some visitational way. 4 The applicant has an interlocutory application on foot for the transfer of the proceeding from the Victorian District Registry to the Queensland District Registry. I will make that order. It is unnecessary to rehearse why the applicant filed in the Victorian District Registry. I leave aside the rights and wrongs of what went on, but the applicant in effect had some difficulty filing in the Queensland District Registry. It is appropriate that the matter be in the Queensland District Registry. The applicant lives in Queensland and, to the extent that it is appropriate that there be an in-person hearing in due course, it would be impossible for the applicant financially to travel to Melbourne. For those reasons I will make an order transferring the proceeding from the Victorian District Registry to the Queensland District Registry. 5 There is an issue about whether the Commonwealth should be a party to the proceeding, whether as a form of contradictor or as a party proper, given the relief that is sought. The applicant wishes to discuss those matters as well as other matters with any pro bono counsel to assist her. 6 The fourth issue that was raised by the joint list of issues was the question of programming and expedition. I do not think it appropriate to make any programming orders today until the applicant has had the opportunity to seek and obtain the benefit of legal assistance. Whether or not formal expedition needs to be ordered, I make it clear at the outset that the case should proceed with all due dispatch and it will be heard at the earliest opportunity that can reasonably be arranged. 7 I am prepared to make an order for a referral of the applicant for pro bono assistance. At her request, for the moment, such referral can be limited to seeking advice as to: the proper structure of the proceeding; the proper parties to the proceeding; the proper evidence to support the proceeding; the prospects of success for the proceeding; and the question as to the propriety and legitimacy of the asserted set-off of the Commonwealth of costs awarded against the Minister against costs awarded in favour of the Minister against the applicant in the past for other unrelated proceedings. 8 I will grant leave to the parties to re-list the matter before me up to the point of time of the allocation of this matter to a judge in the Queensland District Registry. That liberty to restore the matter before me will be on two days' notice. 9 I will formulate the orders for transfer and pro bono assistance today. To the extent that such orders may vary textually from the orders I make today, the written orders will prevail. Those orders will be that: (1) the proceeding be transferred from the Victorian District Registry to the Queensland District Registry; (2) the Court refer the applicant for pro bono assistance in the respect identified in these reasons; and (3) there be liberty to apply before me until such time a judge is seized of the matter in Brisbane. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop.

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