FEDERAL COURT OF AUSTRALIA

Gersten v Minister for Immigration & Multicultural Affairs [2000] FCA 1917

JOSEPH GERSTEN & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR

N 996 of 2000

SACKVILLE J

14 DECEMBER 2000

SYDNEY

THE COURT ORDERS THAT:

1.      The time for filing and service of a notice of motion seeking leave to appeal from the judgment of Whitlam J of 7 July 2000 be extended to 6 December 2000.

2.      Leave be granted to Mr Gersten and Mr Lee to appeal from the judgment of Whitlam J of 7 July 2000.

3.      The appellants file and serve an amended notice of appeal on or before 21 December 2000.

4.      The amended notice of appeal include particulars of the basis upon which it is said that Whitlam J erred in making the finding that Mr Gersten and Mr Lee had engaged in “underhand and disreputable behaviour”.

5.      The appellants file and serve written submissions on the appeal on the same date that the appellants’ written submissions are due in proceedings N 997 of 2000.

6.      The respondents file and serve written submissions on the appeal on the same date that the respondents’ written submissions are due in proceedings no N 997 of 2000.

7.      The parties approach the Registry to organise a date before the end of Term to settle the index to the appeal books.

8.      Liberty to apply on 48 hours notice.

9.      The first respondent's notice of motion, filed on 17 October 2000, be dismissed.

10.  The second respondent's notice of motion, filed on 18 October 2000, be dismissed.

11.  The appellants pay the respondents’ costs of each of the motions referred to in Orders 9 and 10.

12.  The costs of the appellant's motion of 6 December 2000 be costs in the appeal.

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

EX TEMPORE REASONS FOR JUDGMENT

1                     This is a motion filed on 6 December 2000 on behalf of Mr Gersten and Mr Lee, who are described in the motion as “appellants”. The so-called appellants seek orders that, first, the time for filing and serving a notice of motion seeking leave to appeal from a judgment of Whitlam J given on 7 July 2000 be extended until 6 December 2000 and, secondly, that leave to appeal from that judgment be granted. 

2                     The reference to Mr Gersten and Mr Lee as "appellants" is related to the fact that Mr Gersten has appealed from final orders made by Wilcox J in the proceedings in which Whitlam J gave an interlocutory judgment on 7 July 2000.  Mr Lee, however, is not stated to be an appellant in the notice of appeal filed in relation to Wilcox J’s judgment. 

3                     The course of events leading up to the present motion is as follows. Mr Gersten appealed to this Court under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from two decisions of the Administrative Appeals Tribunal (“the Tribunal”). In each matter, the Tribunal had upheld claims that documents requested by Mr Gersten under the Freedom of Information Act 1982 (Cth) were exempt documents under that Act. The two separate proceedings were numbered N 795 of 1999 (against the Minister for Immigration and Multicultural Affairs) and N 1392 of 1999 (against the Australian Federal Police).

4                     On 31 May 2000, the respondents to each of the appeals applied ex parte to Whitlam J for urgent relief. In substance the relief sought was the delivery-up of certain documents, which were said to be “exempt documents”, that had come into the possession of Mr Gersten and his solicitor, Mr Lee. The basis of the application was that the documents had been released by mistake to Mr Gersten and Mr Lee by the Court, which had custody of them pending the determination of the appeals. Whitlam J made the orders sought by the respondents.

5                     In further proceedings, Whitlam J gave a judgment on 7 July 2000: Gersten v Minister for Immigration & Multicultural Affairs [2000] FCA 922. In that judgment, his Honour ordered that in each case Mr Gersten and his solicitor, Mr Lee, pay to the respondents, on an indemnity basis, the costs of the motion including the costs of hearing days after the grant of ex parte relief. Integral to the making of these orders was his Honour's finding that Mr Gersten and Mr Lee had engaged in “underhand and disreputable behaviour” in making use of the exempt confidential documents.

6                     In due course, Wilcox J heard the substantive appeals in each matter. His Honour dismissed those appeals: Gersten v Minister for Immigration & Multicultural Affairs [2000] FCA 1221.

7                     Mr Gersten has appealed as of right from the orders made by Wilcox J in the proceedings to which the Australian Federal Police was the respondent (N 1392 of 1999), but no appeal has been brought from the orders of Wilcox J in relation to the proceedings involving the Minister (N 795 of 1999).

8                     On 12 September 2000, Mr Gersten and Mr Lee filed a purported notice of appeal seeking to set aside Whitlam J’s orders. That notice of appeal prompted a notice of motion from the Minister and the Australian Federal Police seeking to have the appeal dismissed as incompetent. That, in turn, seems to have prompted the present motion.

9                     In support of the present motion, affidavit evidence has been given by Mr Gersten. Although that evidence is brief and has a number of significant gaps, it offers an explanation for the delay in seeking leave to appeal from the judgment of Whitlam J given on 7 July 2000. The explanation is that Mr Gersten considered that it was unnecessary and wasteful to appeal from Whitlam J’s judgment until Wilcox J had determined the substantive proceedings, namely the appeals on questions of law from the Tribunal. Mr Gersten asserts, and his assertion has not been challenged in this application, that he formed the view that if Wilcox J allowed the appeals, Whitlam J’s costs orders would have been overtaken.

10                  Mr Gersten also asserts that he thought that the notice of appeal filed on 12 September 2000 was adequate to protect his interests, and presumably those of Mr Lee, in relation to the orders of Whitlam J. 

11                  Mr Zipser, who has appeared for Mr Gersten and Mr Lee, contends that an extension of time should be granted and that leave to appeal should also be granted. He submits that Mr Gersten and Mr Lee each wish to challenge the finding made by Whitlam J that they had engaged in “underhand and disreputable behaviour”. He also submits that there is evidence which Whitlam J should have taken into account before reaching that conclusion and that his Honour did not, in fact, take that evidence into account. It is contended that if Whitlam J had done so he may have reached a different conclusion on the critical finding of fact.

12                  The principles governing leave to appeal and an extension of time for filing a motion seeking leave to appeal are well established and are referred to in the submissions of the parties. 

13                  Ordinarily one might expect that there would be difficulties in obtaining a grant of leave to appeal from an interlocutory costs order, at least, in the absence of any clear issue of principle.  Whitlam J’s orders are, however, a little unusual in the sense that his Honour made serious adverse findings against both Mr Gersten and Mr Lee. Those findings are obviously of some importance to Mr Gersten and Mr Lee, both of whom are legal practitioners. If leave is not granted, it is fair to say that the consequences of Whitlam J’s orders may not necessarily be limited simply to the indemnity costs order. 

14                  In my view, although the evidence produced by Mr Gersten is skimpy, it suffices to establish an explanation for the delay in filing an application for an extension of time and an application for leave to appeal.

15                  I think it unnecessary and inappropriate to examine closely the competing submissions that have been made on the prospects of success on the appeal.  It is enough for me to say that the arguments that have been put forward on behalf of Mr Gersten and Mr Lee cannot be characterised as hopeless.  This is not to say that those arguments will be accepted by the Full Court. It is merely to indicate that there may be an arguable basis to put to a Full Court to challenge the orders made by Whitlam J.

16                  In these circumstances, I think the appropriate course is to extend the time for filing and serving a notice of motion seeking leave to appeal from the judgment of Whitlam J given on 7 July 2000 until 6 December 2000, and to grant leave to Mr Gersten and Mr Lee to appeal from that judgment.

17                  Mr Zipser has indicated that it will be necessary for an amended notice of appeal to be filed. I direct that the notice of appeal should also include particulars of the basis upon which it is said that his Honour erred in making the finding that Mr Gersten and Mr Lee had acted in an underhanded and disreputable manner.

18                  I should also add that the appeal from the judgment of Wilcox J has been listed for hearing in February 2001, and it would be appropriate for the appeal from the orders made by Whitlam J, to be heard by the same Full Court at the same time, subject to any contrary orders that might be made by the Full Court itself.

19                  I direct that the written submission of the appellants in proceedings No N 996 of 2000 be filed on the same date as the submissions of the appellant in proceedings No N 997 of 2000, and that the submissions of the respondents in N 996 of 2000 should be filed and served on the same date as the submission of the respondent in N 997 of 2000.

COSTS

20                  The respondents have made an application for costs in relation to their two motions, filed respectively on 17 and 18 October 2000.  The motions were to the effect that the appeal be dismissed as incompetent because the judgment appealed from was interlocutory and, at that stage, no leave to appeal had been sought or granted. 

21                  In relation to the motions themselves, in light of the orders already made, the appropriate order is that each be dismissed. The motions are now moot. However, this does not detract from the point that, at the time the motions were filed, they correctly pointed to a fatal deficiency in the notice of appeal that had been filed on 12 September 2000.

22                  Mr Zipser has conceded that the notice of appeal was incompetent and that leave was required to appeal from the judgment of Whitlam J given on 7 July 2000 since it was an interlocutory judgment. In the circumstances, despite that fact that the motions have been dismissed, the appropriate order is that the appellants pay the respondents’ costs of each of those notices of motion.

Associate:

Dated:              14 December 2000