FEDERAL COURT OF AUSTRALIA

Brehoi v Minister for Immigration & Multicultural Affairs [2001] FCA 931

EVIDENCE – objections to admissibility of affidavit evidence of respondent – where applicant unrepresented – where question as to whether an issue estoppel was binding on the parties

PRACTICE & PROCEDURE - difficulties facing the court where moving party unrepresented – consideration of guidelines to be used by courts when rulings on evidence called for.

Migration Act 1958 (Cth), ss 253, 254

Re RRT ex parte HB [2001] 179 ALR 513

Re Refugee Review Tribunal ex parte HB (Kirby J, 7 May 2001, (2001) 9 leg rep 16

RE Litigants in Person Guidelines (2001 Fam CA 348, 4 June 2001

NICHOLAS BREHOI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO. N 880 OF 2001

JUDGE:          BEAUMONT J

DATE:            10 JULY 2001

PLACE:          SYDNEY

THE COURT ORDERS THAT rulings on evidence be given in accordance with the reasons for judgment.

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

REASONS FOR JUDGMENT (NO. 1)

(ON RULINGS ON EVIDENCE)

BEAUMONT J:

1                     Objection has been taken by the respondent Minister to part of an affidavit (pars 4, 5 and 6) sworn by the applicant in this matter.  The applicant is unrepresented.  In his affidavit sworn 23 May 2001, the applicant has purported to raise as an issue, in these proceedings for judicial review of the making of a deportation order, the service upon him of that order.  The objection made to the admissibility of the evidence sought to be tendered by the applicant is one of substance, that is to say, the Minister submits that the issue of service of the deportation order has been conclusively and finally determined by the judgment of Madgwick J in proceedings between the present parties, on a related, albeit not identical, question.

2                     In Brehoi v the Minister for Immigration and Multicultural Affairs [2000] FCA 1839, Madgwick J dismissed an application by the present applicant to review a decision to detain the applicant pursuant to ss 253 and 254 of the Migration Act 1958 (Cth) (“the Act”).  In the course of his reasons, Madgwick J held (at 24) as follows:

 “Although the applicant denies being visited by Mr Gillett on 29 August 1997, it seems likely that Mr Gillett did in fact visit the applicant at the detention centre at Silverwater and did give him the letter informing him of the deportation order and detention pursuant to s 254 of the Act.  The applicant gave evidence that he contacted a solicitor some time in August for advice about an AAT appeal.  30 and 31 August 1997 were a Saturday and Sunday.  The applicant would only have contacted a solicitor to appeal against a deportation order if he had received notice of such a deportation order.  That would be consistent with the evidence of Mr Gillett that he gave the applicant the notice of his deportation on 29 August 1997.  Further, the applicant in a written statement of 12 May 2000 said that he made an application to the AAT and, in oral evidence, said that Corby Livingstone, solicitors, were acting on his behalf in making that application.  (Elsewhere, he said he had no money to pay Corby Livingstone.  It seems unlikely that they would have seen the applicant as a suitable candidate for any pro bono generosity they may have possessed.)  In the application to appeal to the AAT, dated 9 September 1997, it was indicated that the deportation order was attached.  It seems likely to me that the solicitors received a copy of the order from the applicant.  The evidence of Mr Gillett is to be preferred to that of the applicant.”

3                     An appeal from Madgwick J's decision was dismissed by a Full Court (Ryan, Conti and Allsop JJ) on 11 May 2001 (Brehoi v the Minister for Immigration and Multicultural Affairs [2001] FCA 557).  At par 13 of the reasons of the Full Court, reference was made to the appellant's lack of legal representation as follows:

 “The first relates to the appellant’s lack of legal representation.  Counsel for the respondent has informed us that at the close of the first day’s hearing, Madgwick J informed the appellant that he would cause enquiries to be made of the New South Wales Bar Association as to whether a barrister might be available to appear for the appellant without charge on the following day.  At the recommencement of the hearing on the second day, the appellant informed his Honour that he had previously spoken to a barrister at the Silverwater Correctional Centre, and had again spoken to, apparently, the same barrister earlier on that morning.  The appellant further informed his Honour that the barrister had given him legal advice but would not be appearing for him.  Despite these circumstances, the appellant submits that he was unable to prepare his case adequately enough to respond to the Minister’s case below.  We do not think that there is merit in this submission, not just because of the circumstances just recorded, but also because the appellant’s lengthy oral and written submissions presented to us on this appeal have demonstrated that he is not lacking in intelligence and confidence to be able to present at considerable length all that could conceivably be said in support of his application.”

4                     In the course of its reasons, the Full Court referred to the finding of the primary Judge that the deportation order had been served upon the appellant.  Prima facie then, it would follow that there is an issue estoppel now binding on the present parties on the question of service of the deportation order.  I say prima facie because unfortunately, as has been mentioned, the applicant is without legal representation, and accordingly I have not had the benefit of any appropriate legal argument that might have been available to the applicant in support of the tender of that part of his affidavit which seeks to establish that the deportation order was not, in fact, served.

5                     In two recent decisions, Kirby J has drawn attention to the grave difficulties facing a court in a matter such as this where the moving party has not engaged legal representation.  See Re RRT ex parte HB [2001] 179 ALR 513 at 518 - 519.  See also Re Refugee Review Tribunal ex parte HB (Kirby J, 7 May 2001, (2001) 9 leg rep 16 at 17).  As Kirby J there noted (at 17):

“… there are limits upon what judges can do.  I express a sense of disquiet about participating judicially in this Court in such an unequal struggle between an unrepresented litigant, detained in custody, and the government of the Commonwealth, well represented and resourced.”

6                     However, as the Full Family Court (Nicholson CJ, Coleman and O'Ryan JJ) has recently noted, the court must do the best it can in the circumstances (see RE Litigants in Person Guidelines (2001 Fam CA 348, 4 June 2001).  In that case, the Full Family Court (at par 209 and following) fully reviewed the authorities explaining the dilemma of a trial judge in dealing with litigation where one side of the record is not represented.  In the course of its reasons, the Full Family Court reviewed that court’s guidelines when rulings on evidence are called for.  As a result of their consideration, their Honours propounded the following guidelines, as altered by them at par 253, as follows:

“10.     A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;

11.              A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;

12.              A judge should explain to the litigant in person any procedures relevant to the litigation;

13.              A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;

14.              If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;

15.              A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects.  A judge is not obliged to provide advice on each occasion that particular questions or documents arise;  [Emphasis added]

16.              If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights.

17.              A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated.  (Neil v Nott (1994) 121 ALR 148 at 150);

18.              Where the interests of justice and the circumstances of the case require it, a judge may:

·                    draw attention to the law applied by the Court in determining issues before it;

·                    question witnesses;

·                    identify applications or submissions which ought to be put to the Court;

·                    suggest procedural steps that may be taken by a party;

·                    clarify the particulars of the orders sought by a litigant in person or the bases for such orders.

The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.”

7                     As will be seen, their Honours are focussing upon the dilemma facing a judge in a matter such as the present, where evidence might be sought to be tendered against a litigant in person, and the litigant in person is not aware of any right to object to it.  In the present case, of course, the position is different.  Here, an objection is taken against the litigant in person, although I will address below an objection taken by the applicant to part of an affidavit relied on by the Minister.  In either situation, I agree that guidelines numbered 10 to 18 inclusive are appropriate for adoption by this Court.

8                     Turning then to the specifics of the present matter;  because the applicant was unrepresented, I inquired of him as to his capacity to deal with the objection.  He has resided in Australia since 1980, and his English is good.  He informed me that he had managed businesses and my impression of him is that he is intelligent and capable of articulating and understanding relatively complex issues.  I bear in mind also that he has already appeared before Madgwick J in person and argued that case and argued his appeal before the Full Court.  He seems to have some familiarity with legal procedures. 

9                     I endeavoured to explain to the applicant the substance of the objection taken to paragraphs 4, 5 and 6, that is to say, an objection as a matter of substance, that there was an issue estoppel on the question.  I believe that he understood the nature of the objection.

10                  In answer to that objection, the applicant has sought to raise a number of matters.  But, in essence, they may be described as an attempt merely to re-agitate the whole question of the circumstances of service of the deportation order.  His submissions did not attempt to address the substance of the objection.  I have already indicated that, prima facie (that is, subject to anything the applicant may say) I am of the view that an issue estoppel operates in this area.  But, having now heard the applicant, there is nothing that he has put to me that constitutes any answer in law to the objection. 

RULING

11                  I therefore uphold the objection and reject pars 4, 5 and 6 of the affidavit of the applicant sworn on 23 May 2001.

12                  Paragraph 4 of the affidavit of Dale Jennifer Watson sworn on 14 June 2001 has, on one view at least, been objected to as a matter of form.  There may also, I should say, be a question of the substantive relevance of this paragraph. 

13                  In par 4 of the affidavit, it is stated by Ms Watson, who is the solicitor having the conduct of the matter in the office of the Australian Government Solicitor, that she is informed and verily believes that Mark Anthony Sullivan occupied the position of Deputy Secretary on 20 August 1997 when he signed the deportation order in this matter (dated 20 August 1997).  She goes on to say that the number assigned to that position, for the purpose of identifying it, was position number 220.  Related to this objection are the terms of par 5 of the affidavit which annexes a copy of the delegation by the Minister to a number of parties but, relevantly, including position number 220 as the second item in the instrument, that being the number identifying Mr Sullivan. 

14                  As a matter of form, it is true that the evidence in pars 4 and 5 of the affidavit is hearsay.  However, as Ms Watson has pointed out, these proceedings in strictness are interlocutory since the applicant seeks leave to make the application out of time.  On the other hand, the respondent Minister now seeks the summary dismissal of the proceedings on the basis that they are frivolous and vexatious and, for that reason, I will approach the present question with more caution that ordinarily.  Nonetheless, I am not satisfied that there is any serious dispute open on the facts sworn to in pars 4 and 5 of Ms Watson’s affidavit.  I am fortified in this conclusion by the circumstance that, as mentioned earlier, both Madgwick J and the Full Court (Ryan, Conti and Allsop JJ) have already found that the deportation order was served upon the applicant.

15                  Implicit in that finding is an issue estoppel on this question in all probability.  However, I need not express any concluded view on that question which does not appear to have been raised for the consideration of Madgwick J or the Full Court.  In my opinion, in the absence of any serious suggestion that the facts deposed to in pars 4 and 5 of the affidavit are truly disputed, I propose to admit those paragraphs.

RULING

16                  Admit pars 4 and 5 of the affidavit of Ms Watson sworn 14 June 2001.

Associate:

Dated:              24 July 2001