SZCRP v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT WILCOX J: 1 This is an appeal against an order made by Driver FM in chambers on 20 June 2005. The Chief Justice directed, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth),that this appeal be heard and determined by a single judge. 2 On 20 June 2005, Driver FM dismissed an application, then pending in the Federal Magistrates Court, pursuant to rule 13.03 of the Federal Magistrates Court Rules 2001 (Cth). Rule 13.03 applies if a party fails to take a step required by the rules or to comply with an order of the Court. Subrule 13.03(2) reads as follows: 'Subject to any other order or transfer the Court may, on the application of another party in the proceeding or of its own motion make an order: (a) that the step be taken within a stated time; or, (b) to end the proceeding or dismiss a response.' 3 Subrule 13.03(3) says: 'The Court may make the order sought or another order that it considers appropriate.' 4 The effect of this rule, as I understand it, is that the Court has power to end a proceeding, either on the application of another party or of its own motion, in a case where a party has failed to take a step required by the rules or has failed to comply with an order of the Court. 5 The appellant sought review by the Refugee Review Tribunal ('the Tribunal') of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') refusing to grant to him a protection visa. On 13 January 2004, the Tribunal handed down a decision affirming the delegate's decision. 6 On 12 February 2004, the appellant filed an application in the Federal Magistrate's Court, which was stated to be made under s 39B of the Judiciary Act 1903 (Cth). The application identified four bases of the claim, any of which, if established, would found a case of jurisdictional error. However, the grounds were stated in the widest terms. They read as if they were taken from a statute rather than related to the facts of the case. 7 The matter came before a Registrar for directions on 10 June 2004. The Registrar directed the appellant to file and serve an amended application, setting out in full the grounds relied upon by him. The Registrar said that, if such an application was not filed by 15 August 2004, the Minister could request that the matter be listed in a non-compliance list before a magistrate, with the intention of applying for summary dismissal. 8 The appellant told me that, in August 2004, he had the benefit of legal advice from a member of the panel of lawyers listed by the Law Society and Bar Council. Accordingly, it might have been expected that the appellant would have been able to particularise any viable grounds of judicial review. 9 On 20 September 2004, the appellant filed an amended application. This document specified two claims: firstly, that the purported decision of the RRT handed down on 13 January 2004 was not a 'privative clause decision' within the meaning of s 474 of the Migration Act 1958 (Cth); and secondly, that the decision was made in excess of jurisdiction of the Tribunal and is consequently void and of no effect. It retained the four grounds that were included in the original application and added a fifth ground, namely, that there was no evidence or other material to justify the making of the decision. No particulars of any of the grounds were supplied. 10 In April 2005, the Minister requested the Registry to list the matter in a non-compliance list. Pursuant to this request, the matter was listed before Driver FM on 23 May 2005. Notice of the listing was given to the appellant and he was present at the hearing on that day. He was assisted by an interpreter. At the conclusion of the hearing, Driver FM made an order striking out the newly added ground (e). He also ordered, inter alia: '2. The applicant is to file and serve on the respondent a statement of particulars, setting out the facts and circumstances supporting each of the four remaining grounds of review no later than 6 June 2005. … 4. In default of compliance with order 2 in respect of particular grounds, the respondent has liberty to apply for an order in chambers for any unparticularised grounds to be struck out.' 11 The appellant did not file any document pursuant to Order 2. That fact distinguishes this case from one in which a document has been filed, in purported compliance with an order, but there is a question whether it satisfies the requirements of that order. In such a situation, a default order can lead to difficulties. However, as no document whatever was filed, in purported compliance with Driver FM's order of 23 May 2005, there are no such difficulties in this case. 12 On 10 June 2005, Nicholas Malcolm Wood, a solicitor employed by the Australian Government Solicitor, affirmed an affidavit in which he referred to the orders made by Driver FM on 23 May 2005 and stated that a search of the electronic records of the Federal Magistrates Court indicated that no statement of particulars had been filed. On 14 June 2005, Mr Wood wrote to the associate to Driver FM referring to the orders made on 23 May 2005 and saying: '3. The respondent applies for orders dismissing the amended application in accordance with the Orders. 4. We enclose a sealed copy of an affidavit of the writer in support of this application.' The enclosed affidavit was that of 10 June 2005. 13 The letter from Mr Wood indicated that a copy of the letter had been sent to the appellant at 2/7 Everton Road, Strathfield 2135. The appellant confirmed today that this was his address at that time. 14 The evidence also includes a copy of a letter addressed to the appellant at that address, dated 14 June, enclosing a copy of Mr Wood's affidavit of 10 June 2005. The appellant told me today that he cannot specifically remember receiving the letter from Mr Wood; however, as I say, he agrees that he lived at that address at that time and he has not disputed that the letter was sent to him. 15 On 20 June 2005, Driver FM ordered that the application be dismissed pursuant to rule 13.03 of the Federal Magistrates Court Rules. 16 On 5 August 2005 the appellant filed a notice of appeal in which he set out one ground as follows: '1. The judgement was made in breach of s13 of the Federal Magistrate Act 1999 in that his Honour did not have Power to make a decision or to give the judgment: (a) In chamber; and (b) Without an oral hearing. Particulars (1) No provision in the Federal Magistrate Act 1999, any other act or the Federal Magistrate Court Rules 2001 authorised the making of the decision or the giving of the judgement without an oral hearing. (2) There was no consent by the parties to the making of the decision or giving of the judgement without an oral hearing.' 17 In relation to the powers of a magistrate to make orders in chambers, it is relevant to note s 13 of the Federal Magistrates Act 1999 (Cth). Section 13(2) sets out a general rule that the jurisdiction of the Federal Magistrates Court is to be exercised in open court. 18 However, that general rule is qualified in this way: 'this rule does not apply where, as authorised by this Act or another law of the Commonwealth, the jurisdiction of the Federal Magistrates Court is exercised by a Federal Magistrate sitting in Chambers.' 19 Section 13(3)(a) of the Act provides: 'The jurisdiction of the Federal Magistrates Court may be exercised by a Federal Magistrate sitting in Chambers in (a) a proceeding on an application relating to the conduct of a proceeding ….' The term 'proceeding' is defined in s 5 of the Act as: 'a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding ...' 20 It seems to me that the strike-out application made by Mr Wood to the magistrate was an incidental proceeding in the course of the main proceeding, namely the applicant's application for prerogative relief. It was also a proceeding relating to the conduct of a proceeding. Consequently, subject to other relevant matters, it is not a proper objection to the order of Driver FM that the order was made in chambers. To the extent that the notice of appeal raises a general objection to the order on that ground, it is without substance. 21 The second leg of the ground of appeal refers to the absence of an oral hearing. However, there appears to be nothing in the Federal Magistrates Act mandating an oral hearing. It will presumably often be convenient in that Court, as in other courts, for a hearing to be conducted by reference to written material, rather than oral evidence and submissions. So there is no basis for implying an obligation to provide an oral hearing. 22 However, it is fundamental to the notion of a court exercising the judicial power of the Commonwealth, pursuant to Chapter 3 of the Commonwealth of Australia Constitution, that it will provide procedural fairness to the parties. This is the preferable way of identifying the point that the appellant was seeking to raise in referring to the absence of an oral hearing. 23 Against that background, it seems to me the issue that I have to decide is whether, in the circumstances of the present case, the appellant was denied procedural fairness. I have come to the conclusion that he was not. The essence of procedural fairness is that a person must be apprised of what is being contended against him or her and must be given an opportunity to make submissions in relation to those contentions. The appellant was present during the hearing on 23 May 2005. He was aware of the deficiency in his statement of grounds and the need for particulars. He was aware that he was required to file and serve a statement of particulars within two weeks, that is, by 6 June 2005. He knew that he had failed to take that action. Also, the appellant was advised, as I would infer from the documents I have seen, that the Minister proposed to ask the magistrate to take the action that had been forecast on 23 May 2005. Mr Wood's letter to the appellant of 14 June 2005 invited the appellant to contact Mr Wood if he wished 'to discuss any aspect of these proceedings'. The appellant was also aware of his ability to contact the Federal Magistrates Court. He had previously been in contact with the Court's registry. 24 Having regard to all these matters, I am satisfied that the course taken in this case did not deny the appellant procedural fairness. Consequently, in my view, the orders made by the magistrate were not invalid. 25 I do not think any other issue calls for my attention. This is not a case where particulars have been belatedly supplied and I am asked in some way to overrule the magistrate's exercise of discretion. 26 The appropriate order for me to make is that the appeal be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.