FEDERAL COURT OF AUSTRALIA

S 442/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1236

S442/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 356 of 2003

ALLSOP J

27 OCTOBER 2003

SYDNEY

THE COURT ORDERS THAT:

1.      The matter be adjourned to 2.15 pm, 28 October 2003.

2.  Costs in the matter be reserved.

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

REASONS FOR JUDGMENT

1                     In this matter the applicant seeks an adjournment of today's hearing.  This matter was set down for hearing on 1 August 2003.  The applicant was present on 1 August.

2                     On two occasions in May of this year, the applicant sought assistance from the New South Wales Bar Association.  In recent weeks, he has renewed that application for assistance by telephone. Mr Grimm, a solicitor of Blake Dawson Waldron, has apparently attempted to assist the applicant in the last month in relation to that matter.  Assistance form the New South Wales Bar Association has not been forthcoming.  That is not entirely surprising.

3                     On 15 January 2002, the applicant filed an application in this Court seeking relief under s 39B of the Judiciary Act 1903 (Cth),subs (1) of which is in identical terms to s 75(v) of the Constitution.  Relief under subs 39B(1) was sought as well as a writ of certiorari.  That matter was heard before his Honour Justice Wilcox on 23 May 2002.  His Honour examined the alleged jurisdictional errors put forward by the applicant.  His Honour dismissed the application.  His Honour did not have recourse to the privative clause provision in reaching his decision.  His Honour examined the reasons of the Tribunal and found there to be no jurisdictional error. 

4                     The appeal to the Full Court of this Court was dismissed by consent on 5 November 2002 and entered on 10 January 2003.  Thereafter the applicant, on 2 December 2002, filed a draft order nisi in the High Court of Australia seeking identical relief to that previously sought in the Federal Court, this time under s 75(v) of the Constitution.  The grounds set out in pars A, B, C and D were assertions of jurisdictional error. The affidavit in support of the order nisi of the applicant indicates that the applicant was advised by a solicitor to withdraw his appeal and seek relief in the High Court.

5                     I am prepared to grant an adjournment for one reason.  I have been concerned that during today the quality of the interpreting has been less than appropriate. The interpreter has identified himself only by reference to a Medicare card.  On occasions I have had difficulty understanding him and on occasions the applicant has indicated that he did not understand what the interpreter said.

6                     I am prepared to stand this matter over until 2.15 pm tomorrow, 28 October.  On that occasion I will deal with the application.  I appreciate that the applicant is not a lawyer.  He has had five months to obtain legal assistance.  On the face of the application, the matter has been dealt with, in terms, by the Federal Court.  The reasons of Merkel J in Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677, as followed by Heerey J in Re Ruddock; ex parte LX [2003] FCA 561 make Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 and notions of issue estoppel relevant.

7                     I have no submissions before me as to what is said to be the jurisdictional error but I note that Wilcox J dealt with the allegations before him on jurisdictional error.  However, as I said, I am concerned that the applicant has not had the assistance today that he otherwise would be entitled to and I propose to adjourn this hearing to 2.15 pm tomorrow afternoon on which occasion I hope the interpreting is better than it apparently was today.

8                     The case is adjourned to 2.15 pm, costs reserved.

Associate:

Dated:              11 November 2003