FEDERAL COURT OF AUSTRALIA

NBGI v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 233

MIGRATION – appeal dismissed for non-appearance

PROCEDURE – whether summary dismissal of application by Federal Magistrates Court was in breach of s 13 of Federal Magistrates Act 1999 – whether summary dismissal of application by Federal Magistrates Court constituted denial of procedural fairness – observations about nature of self-executing orders – observations about making formal application for summary dismissal – observations about providing notice and opportunity to be heard before ordering summary dismissal – observations about making of orders in Chambers in absence of parties

Federal Court of Australia Act 1976 (Cth), s 25(2B)(bb)(ii)

Federal Magistrates Act 1999 (Cth), s 13

Abalian v Innous [1936] 2 All ER 834 followed

Broers v Forster (1981) 36 ALR 605 followed

NBGI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 833 OF 2005

BLACK CJ, FINKELSTEIN AND ALLSOP JJ

14 NOVEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) for the appellant’s failure to attend the hearing of the appeal.

2.         The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

BLACK CJ:

1                     This appeal against the summary dismissal of the appellant’s application for judicial review comes before the Full Court pursuant to leave to appeal granted by Branson J on 23 June 2005 (NBGI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 882) and following a determination I made as Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth).  The appeal provides the occasion to make some observations about the appropriateness, in the circumstances, of an order having self-executing characteristics and also to comment upon certain informalities of procedure.

2                     The Notice of Appeal contains three grounds.  The first is that the order for summary dismissal made by the Federal Magistrate on 22 March 2005 (NBGI v Minister for Immigration [2005] FMCA 315) was made in breach of s 13 of the Federal Magistrates Act 1999 (Cth) in that the Federal Magistrate did not have power to make a decision or to give judgment (a) in Chambers; and (b) without an oral hearing.  The second ground is that, by giving judgment in Chambers and without having an oral hearing, the appellant was denied procedural fairness.  The third ground is that the Federal Magistrate was in error in purporting to make an order under rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001, because the appellant had not failed to comply with an order of the Court and so no power arose under that Rule.

3                     It appears that neither the appellant’s pro bono counsel, nor the respondent’s solicitors, have been able to contact the appellant.  The appellant has not filed and served an outline of submissions.  In these circumstances counsel returned his brief and advised that, in the absence of instructions from the appellant, he was unable to appear at the hearing of the appeal.

4                     When the appeal was called on for hearing this morning, there was no appearance for the appellant and Mr Beech-Jones of Counsel, who appeared for the respondent, submitted that the appeal should be dismissed for the appellant’s failure to attend the hearing:  Federal Court of Australia Act 1976, s 25(2B)(bb)(ii).

5                     In her reasons for granting leave to appeal, Branson J outlined the history of the proceeding. It is unnecessary for me to repeat that here since the present appeal is concerned only with the orders made by the Federal Magistrate on 25 January 2005 and 22 March 2005.  The third order made on 25 January 2005 was that, if the appellant did not comply with the first order – which required him to file an amended application giving complete particulars of each ground of review being relied upon by 28 February 2005 – “the application will be automatically dismissed by [the Federal Magistrate] in Chambers.”

6                     The appellant filed an amended application on 8 February 2005.  Nevertheless, by letter dated 2 March 2005 addressed to the Associate to the Federal Magistrate, the respondent’s solicitors sought to invoke the third order made on 25 January 2005.  The letter included the following passage:

We note that on 8 February 2005 the Applicant filed an amended Application purporting to comply with Order 1 ….  Upon our review of the amended Application, the Applicant merely cavils with the evidentiary findings of the Tribunal and as such is seeking impermissible merits review.  We note that the Applicant has not fully particularised each ground of review relied on.

7                     On 22 March 2005, the Federal Magistrate made orders in Chambers dismissing the application “pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules for failing to comply with orders of the Court dated 25 January 2005”.  The appellant was not given an opportunity to be heard. 

8                     Branson J concluded her reasons for granting the appellant leave to appeal with these observations:

In my view it is far from clear that either s 13 of the Federal Magistrates Act 1999 (Cth) (‘the Act’) or rule 13.03 of the Rules authorised the procedure adopted by the Federal Magistrates Court in this matter.  In particular it is not obvious that either the Act or the Rules authorised

(a)       the informal application made to the Federal Magistrate by the letter from the respondent’s solicitor dated 2 March 2005;

(b)       the dismissal of the applicant’s amended application without his being heard in opposition to that course; or

(c)        the making of an order bringing the proceeding to an end, and the publication of reasons for judgment in respect of that order, in Chambers.

The importance of the issues identified by Branson J concerning procedures adopted by the Federal Magistrates Court, particularly when hearing and determining proceedings brought by self-represented applicants, was such as to warrant this appeal being heard by a Full Court.

9                     Since the appellant has not appeared to prosecute his appeal despite having been given notice of the time and place of the hearing (I note the affidavit evidence to that effect) and has given no explanation for his failure to appear, the appeal should be dismissed with costs pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) for the appellant’s failure to attend the hearing.

10                  The course adopted by the Federal Magistrate was however the subject of submissions by counsel for the Respondent and it would seem desirable that something be said about the procedure adopted in this case, particularly since the Federal Magistrates Court has to deal with many instances of non-compliance with its orders in proceedings challenging decisions of the Refugee Review Tribunal.  A very considerable burden is imposed on the Federal Magistrates Court in these cases as a consequence of failures to comply with its orders.

11                  First, although the third order made by the Federal Magistrate – that in default of compliance with the first order, “the application will be automatically dismissed … in Chambers” – bears some resemblance to a “self-executing” or “self-operating” order (see Broers v Forster (1981) 36 ALR 605 at 612-614 (Bowen CJ and Ellicott J), 620-621 (Deane J); Abalian v Innous [1936] 2 All ER 834; Reiss v Woolf [1952] 2 All ER 3; [1952] 2 QB 557), an order in these terms was inherently liable to cause trouble.  A self-executing order should provide in precise and unambiguous terms that judgment may be entered on the occurrence or non-occurrence of a very clearly defined event.  Being self-executing, such an order requires no further judicial intervention.  This means, however, that if there could be a legitimate conflict of opinion about whether or not the event said to be the appropriate subject of such an order has in fact occurred, which could only be resolved by further adjudication, there will be no occasion for the making of a self-executing order.  As Greene LJ (as he then was) said in Abalian v Innous (at 838):

If an order is to be made in the form that, unless one party or another party does something the action will be dismissed, it is imperative that the thing to be done in order to avoid dismissal of the action should be specified in the clearest and most precise language, so that it may be possible for the party on whom the necessity of doing the act lies … to be in no doubt whatsoever as to the steps which he is to take if he is to avoid his action being dismissed.

12                  In the present case, the appellant was ordered to file, by 28 February 2005 an amended application giving complete particulars of each ground of review being relied upon.  An amended application was filed within time on 8 February 2005.  The Minister’s solicitors were, however, of the view that the amended application did not satisfy the terms of the order.  This is plain from their letter of 2 March 2005.  In his reasons, the Federal Magistrate noted that the amended application “purported” to comply with the earlier orders and, in a passage that reflects the submissions made to him, his Honour observed (at [14]):

This document was not submitted in the proper Court form and did not give proper particulars of the grounds of review.  The amended application merely cavilled with the evidentiary finding of the Tribunal and as such was seeking an impermissible merits review.  The applicant’s individual grounds were not identified nor any particularisation supplied.

To reach that conclusion, however, it was necessary to make an evaluation of the amended application and form an opinion as to whether it complied with the first order made by the Federal Magistrate.  That order could not be said to be unambiguous, nor expressed with such clarity and precision that the appellant, particularly as he was a self-represented appellant, would have no doubt whatsoever about what was required to be in his amended application to avoid his case being summarily dismissed.

13                  In these circumstances, it was wrong to dismiss the appellant’s application without giving him proper notice and an opportunity to be heard in opposition to that course.  Moreover, a formal application should have been made to the Court.  The letter sent by the respondent’s solicitors to the Federal Magistrate’s Chambers was an impermissible informality in these circumstances.  Allsop J makes some observations, with which I agree, about the circumstance that the orders were made other than in open court.

14                  It remains only to say that to the extent the Federal Magistrate’s reasons could be read as supporting the order for dismissal on the ground that the amended application did not disclose any reasonable basis for the application, the case should have been dealt with explicitly on that footing.  The order made did not reflect any such reasoning.

15                  As I have noted, however, the application made by counsel for the respondent that the appeal be dismissed for failure to attend the hearing should be granted and the appeal should be dismissed, with costs.

Associate:

Dated:              22 December 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

FINKELSTEIN J:

16                  I agree in the reasons of the Chief Justice and with the orders he proposes.

Associate:

Dated:              22 December 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

ALLSOP J:

17                  I agree in the reasons of the Chief Justice and with the orders that he proposes and would only add the following.

18                  Mr Beech-Jones in his helpful submissions put the proposition that the orders made by the learned Federal Magistrate could be made under s 13(3)(a) of the Federal Magistrates Act 1999 (Cth).  That proposition is not self-evidently correct.  Given the other circumstances of the case, it is unnecessary to decide this question in particular without a contradictor.  Even if it be the case that s 13(3)(a) authorised the making of the orders in Chambers, that did not authorise the making of the orders without providing the party an opportunity to be heard.  A hearing in Chambers is not a hearing in the absence of the parties; it is a hearing in the absence of the public.

Associate:

Dated:              22 December 2005