FEDERAL COURT OF AUSTRALIA

SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1500

PRACTICE AND PROCEDURE – obligation to give written reasons – whether transcript sufficient to constitute written reasons – power to order that no further application be accepted for filing except with the leave of the court.

Federal Court Act 1976 (Cth), s 23

Federal Magistrates Act 1999 (Cth), ss15, 81

Federal Court Rules, Order 46 rule 7A

Federal Magistrate Court Rules, rule 2.06

Public Service Board v Osmond (1985) 159 CLR 656 applied

House v The King (1936) 55 CLR 499 cited

Pettitt v Dunkley [1971] 1 NSWLR 376 at 388 referred to

Housing Commission (NSW) v Tatmar Pastoral Company [1983] 3 NSWLR 378 referred to

Wiki v Atlantis Relocations Pty Ltd [2004] NSWCA 174 referred to

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 referred to

Mifsud v Campbell (1991) 21 NSWLR 725 cited

Archibald v Byron Shire Council (2003) 129 LGERA 311 referred to

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 referred to

SZCTT v MIMIA [2004] FMCA 498 cited

Tavalu v MIMIA [2003] FMCA 175 cited

Kosi v MIMIA [2003] FMCA 340 cited

S515 of 2003 v MIMIA [2004] FCA 501 referred to

Re Horvath and Anor; Ex parte Commonwealth Bank of Australia [1998] 1431 referred to

David James Roderick v Australian and Overseas Telecommunications Corporation Limited [1997] FCA 325 cited

Bird v Free (1994) 126 ALR 475 cited

Bizuneh v MIMIA (2003) 128 FCR 353 cited

Jones v Skyring (1992) 66 ALJR 810 referred to

Westsub Discounts Pty Ltd v IDAPS Australia Ltd (No. 2) (1990) 94 ALR 310 referred to

SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs

N 1241 of 2004

JACOBSON J

16 NOVEMBER 2004

SYDNEY

THE COURT ORDERS THAT:

1.         The Appeal be allowed;

2.         The orders made by the Federal Magistrate on 26 July 2004 be set aside;

3.         The matter be remitted to the Federal Magistrates Court to decide again, the basis up on which the application should be dismissed and what order, if any, should be made imposing a requirement for the leave of the Federal Magistrates Court before any further application with respect to the same Tribunal decision is accepted for filing in that court.

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

REASONS FOR JUDGMENT

1.             This is an appeal against orders made by a Federal Magistrate on 26 July 2004.  On that date the learned Magistrate made an order dismissing an application for review of a decision of the Refugee Review Tribunal (“the RRT”) on two separate bases.  The first was pursuant to Part 13 Rule 13.10(c) of the Federal Magistrate Court Rules, that the proceedings are an abuse of process.  The second was pursuant to Part 13 Rule 13.03(2)(b) that the applicant had failed to comply with an order of the court requiring her to file and serve an amended application giving complete particulars of each ground of review.  Order 2 of the Federal Magistrate's orders provided that no further application by the applicant to review the decision of the RRT dated 10 November 2000 be accepted for filing except with leave of the court.

2.             No written reasons were supplied by the Federal Magistrate but the Magistrate's Associate provided a proofed copy of the transcript.  On 29 September 2004 I gave leave to appeal in this matter.  Leave was limited to the following questions:

                       i.            Whether the magistrate was obliged within the principles stated by the High Court in Public Service Board v Osmond (1985) 159 CLR 656 (“Osmond”) to give written reasons for the orders made on 26 July 2004; 

                     ii.            Whether the transcript of the hearing of 26 July 2004 sufficiently constitutes reasons within that principle; 

                    iii.            Whether the magistrate was in error in dismissing the application for review pursuant to Part 13 Rule 13.10(c) of the Federal Magistrates Court Rules on the ground that the proceedings were an abuse of process;

                   iv.            Whether any error of principle is disclosed in accordance with House v The King (1936) 55 CLR 499 (“House”) in the order dismissing the application pursuant to Part 13 Rule 13.032(b) on the ground that the applicant had failed to file and serve an amended application giving complete particulars of the ground of review; and

                     v.            Whether the magistrate had power to make order 2, namely that no further application to review the decision of the RRT be accepted for filing except with the leave of the court.

3.             Leave was granted on a limited basis for two reasons.  Firstly, it appears from the transcript that the applicant consented to the dismissal of the proceedings.  Counsel for the applicant asked the Magistrate to make orders merely dismissing the proceedings without including in the terms of the order that the dismissal was on the ground of an abuse of process.  Counsel for the applicant opposed the making of order 2. 

4.             Secondly, although the appellant filed an affidavit in support of her application for leave to appeal, she did not file a draft notice of appeal.  Nothing in the affidavit disclosed any properly arguable ground of error on the part of the Magistrate or suggested any possible jurisdictional error on the part of the RRT. 

5.             I will deal with each question in turn.

i.          Whether the magistrate was obliged within the principles stated by the High Court in Osmond to give written reasons for the orders made on 26 July 2004; 

6.             The High Court said in Osmond, per Gibbs CJ at 666 to 667, that whilst it is not a rule that a judicial officer must give reasons in every case, reasons ought to be given in a case in which an appeal lies from the decision. 

7.             In doing so the court upheld the principle enunciated in Pettitt v Dunkley [1971] 1 NSWLR 376 at 388 (“Pettitt v Dunkley”) that:

"an obligation concerning the giving of reasons lies upon any court including an intermediate court of appeal so far as it is necessary to enable the case properly and sufficiently to be laid before the higher appellate court.” 

8.             In Osmond, Gibbs CJ observed that there is no inflexible rule that reasons should be given for judicial decisions finding the requirement to give reasons, as Mahoney JA did in Housing Commission (NSW) v Tatmar Pastoral Company [1983] 3 NSWLR 378 (“Tatmar”)at 386, as an incident of the judicial process subject to the qualification that it is a normal but not universal incident.

9.             In Tatmar, Mahoney JA observed that the requirement that reasons be given should not be limited to cases where there is an appeal.  His Honour also provided some examples of cases in which reasons might not ordinarily be given, noting certain procedural applications and applications for leave where considerations of fact and law are clear.  He concluded that:

“reasons need to be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it”.

10.         The duty of a Judge or Magistrate to state reasons was recently described by the NSW Court of Appeal in Wiki v Atlantis Relocations Pty Ltd [2004] NSWCA 174 (“Wiki”). There, at [56] – [59], Ipp JA, with whom Bryson AJA and Stein AJA agreed, held that a miscarriage of justice can arise where what is and is not disclosed in a judge's reasons is a breach of the principle that justice must not only be done but must be seen to be done, citing Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 431 (per Mason P).

11.         Ipp JA found at [59] that it is well settled that a judge does not need to refer to all the evidence in the proceedings or to indicate that the evidence is accepted or rejected. As observed by Mahoney JA in Tatmar at 386, “the reasons given need not be elaborate, for an elaborate argument may not require an elaborate answer”.  The extent of the duty to give reasons depends upon the circumstances of the individual case: Mifsud v Campbell (1991) 21 NSWLR 725 at 728 (per Samuels JA, with whom Clarke JA and Hope AJA agreed). 

12.         Ipp JA quoted, with approval, the observations made in Archibald v Byron Shire Council (2003) 129 LGERA 311 per Sheller JA (with whom Beazley JA agreed) at [54]:

“Where a dispute, such as this one, involves something in the nature of an intellectual exchange with reasons and analysis advanced on either side, the parties are entitled to have the judge enter into the issues canvassed before the court and to an explanation by the judge as to why the judge prefers one case over the other.”

13.         The orders of the Federal Magistrate make it clear that his Honour formed the view that the proceedings were an abuse of process but it is not clear why or upon the basis of which facts he so decided.  One issue which arose was, as the applicant's representative pointed out (see transcript page 5) there had never been an adjudication on the merits of any of the appellant's prior judicial review proceedings.  This submission appeared to be correct and in the absence of reasons given by the Federal Magistrate it is impossible to tell how he disposed of that contention.

14.         There were submissions put by the respondent's solicitors before the Magistrate for a range of possible bases for, nonetheless, finding the proceedings to be an abuse of process. However, the submissions merely identified the legal principles without stating how the power was enlivened on the facts of the case.  In any event, it is not possible to tell whether or to what extent the Magistrate adopted and applied those submissions.  Further, whilst it is relatively clear why the Federal Magistrate made the order dismissing proceedings for non-compliance with a past direction, the transcript does not reveal what discretionary considerations, if any, the Federal Magistrate took into account or how they were weighed.

15.         Turning to order 2, requiring that leave of the court be obtained before any further application for review of the same RRT decision be accepted for filing, this seems on its face to be an oppressive order.  Counsel for the Minister submits that in making this order the Federal Magistrate may well have been and probably was moved by a view that the proceedings were an abuse of process.  However, as conceded by counsel for the Minister, again it is not clear why the Federal Magistrate took that view, nor whether any other factors were taken into account or how they were weighed.  Without the benefit of reasons it is not possible for this court to properly consider an appeal from the Federal Magistrate's decision.

16.         It seems to me in light of the particular facts of the case and the principles outlined above that the Federal Magistrate was under an obligation to provide reasons for his decision. That he did not amounts to an error of law: see Pettitt v Dunkley. 

ii. Whether the transcript of the hearing of 26 July 2004 sufficiently constitutes reasons within that principle;

17.         Whilst the transcript of the hearing of 26 July 2004 is of some assistance in understanding the issues raised by the parties, the transcript does not fulfil one of the core purposes served by a judicial decision, this purpose was identified by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (at 279):

“[I]t enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision”.

18.         In my opinion the transcript cannot satisfy this purpose.  It contains a true and accurate reflection of the hearing of the matter, but it did not provide the parties with an understanding of the basis upon which the Federal Magistrate came to his decision.

iii. Whether the magistrate was in error in dismissing the application for review pursuant to Part 13 Rule 13.10(c) of the Federal Magistrates Court Rules on the ground that the proceedings were an abuse of process;

19.         In light of the view that I have reached about the absence of reasons I cannot answer this question.

iv. Whether any error of principle is disclosed in accordance with House in the order dismissing the application pursuant to Part 13 Rule 13.032(b) on the ground that the applicant had failed to file and serve an amended application giving complete particulars of the ground of review; and

20.         Again, I cannot answer this question because of the absence of reasons.

v. Whether the magistrate had power to make order 2, namely that no further application to review the decision of the RRT be accepted for filing except with the leave of the court.

21.         Counsel for the Minister has referred me to a number of decisions of the Federal Magistrates Court in which orders of this kind have been made.  They are SZCTT v MIMIA [2004] FMCA 498 at [10] per Driver FM; Tavalu v MIMIA [2003] FMCA 175 at [9] per Driver FM; Kosi v MIMIA [2003] FMCA 340 at [22] per Driver FM.

22.         Counsel for the Minister has also referred me to a number of decisions of the Federal Court which seem to provide authority for the proposition that there is power to make an order in terms of Order 2.  In S515 of 2003 v MIMIA [2004] FCA 501 at [3], Emmett J made such an order.  His Honour appears to have assumed that he did have such a power but he did not cite any authority for the exercise of the power. 

23.         In Re Horvath and Anor; Ex parte Commonwealth Bank of Australia [1998] 1431 Goldberg J made an order in exercise of the power conferred under Order 46, rule 7A of the Federal Court Rules.  Similar orders have been made in other such cases including David James Roderick v Australian and Overseas Telecommunications Corporation Limited [1997] FCA 325 (“Roderick “) per von Doussa J and Bird v Free (1994) 126 ALR 475 (“Bird”) at 480.

24.         The orders which were made by von Doussa J in Roderick and Drummond J in Bird were administrative directions given to a registrar in aid of the administration of the court, see also Bizuneh v MIMIA (2003) 128 FCR 353 (Lee, Whitlam and Jacobson JJ)).  It seems to me that since the court has power to make orders under Order 46 rule 7A of the Federal Court Rules on an application made by a registrar, the court must also have power to make such an order on the application of another party to the proceeding in anticipation of the possible filing of such an application in the court registry.

25.         The power contained in Order 46 rule 7A also finds expression in rule 2.06 of the Federal Magistrate Court Rules:

(1) A Registrar may refuse to accept a document for filing if:

(a) the document appears on its face to be an abuse of process or frivolous, scandalous or vexatious; or

(b) the document is filed in connection with a pending proceeding and the registry is not the appropriate registry.

(2) The person seeking to file the document may apply to the Court for review of the Registrar's decision in accordance with Division 20.2.

26.         The source of the power for rule 2.06 may be found in s 81 of the Federal Magistrates Act 1999 (Cth) (“Federal Magistrates Act”)under which the Federal Magistrates Court has a broad power to make rules with respect to practice and procedure.  As counsel for the Minister pointed out, a similar provision was considered by Toohey J in Jones v Skyring (1992) 66 ALJR 810 (“Jones”), where his Honour said, at 812:

“It might be said that an order precluding the bringing of any further action by a person goes beyond practice and procedure. But an order under O.63 r.6(1)does not have that effect.  The rule sustains an order that the person shall not, without the leave of the Court or a Justice, begin any action, appeal or other proceeding in the Court; that leave shall not be given unless the Court or a Justice "is satisfied that the proceedings are not an abuse of the process of the Court and that there is prima facie ground for the proceedings".  Read in its entirety, the rule is concerned with practice and procedure, reinforcing the power of the Court to protect its own process against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance. The recent decision of this Court in Williams v. Spautz  (1992) 66 ALJR 585; 107 ALR 635 gives effect to the philosophy underlying provisions such as O.63 r.6.” 

27.         An additional source of power may also be found in s 15 of the Federal Magistrates Act which provides that the Federal Magistrates Court has power in relation to matters in which it has jurisdiction to make orders of such kinds including interlocutory orders as the Federal Magistrates Court thinks appropriate and issue or direct the issue of writs of such kind as the Federal Magistrates Court thinks appropriate.  Section 15 of the Federal Magistrates Act is in the same terms as s 23 of the Federal Court Act 1976 (Cth) ("Federal Court Act”).  Section 23 of the Federal Court Act has been held to be a wide power which includes the power to prevent misuse of the court's procedures. 

28.         An expression of this is to be found in the judgment of Woodward J in Westsub Discounts Pty Ltd v IDAPS Australia Ltd (No. 2) (1990) 94 ALR 310 at 314, where his Honour said:

“I pause here to observe that, in the case of the Federal Court, I think it is more appropriate to speak of the implied rather than the inherent jurisdiction of the Court; see Jackson v Sterling Industries (1986) 12 FCR 267 at 272 and 283-5; 69 ALR 92 at 96-97 and 108-9.  Since the Court is the creature of statute, I believe that any such power as may be inherent in the Supreme Courts of the States must be found in the statute establishing the Court. Section 23 of the Federal Court of Australia Act provides "the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, .... as the Court thinks appropriate."  I think that, by implication, this section gives the Federal Court the same powers, among others, which Diplock L.J. referred to in Hunter v Chief Constable of the West Midlands Police (1928) AC 529 at 536, when he spoke of –

‘The inherent power which any Court of Justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of    its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.’”

29.          It follows, in my view, that the Federal Magistrates Court does have power to make an order in terms of Order 2.  However, that particular direction was one which probably would not have been made if the application had not been dismissed as an abuse of process by the Federal Magistrate.  Accordingly, in the absence of reasons the order cannot stand and should be set aside. 

vi.  Further Grounds.

30.         Although I granted leave to appeal on a limited basis for reasons set out in my judgment of 20 September 2004, I did leave open the possibility of an additional ground alleging jurisdictional error.  This was contained in Order 5 of my orders made on 29 September 2004.

31.         The appellant filed an amended application on 19 October 2004.  She also filed an affidavit sworn on 28 September 2004.  The affidavit appears to expand upon the matters put by her to the RRT.  The amended application either recanvasses matters previously agitated or seeks to challenge the merits of the RRT's decision; so too does the affidavit of 28 September 2004.  Moreover the amended application is inconsistent with the concession made by counsel for the appellant at the hearing before the Federal Magistrate, namely that he had informed her that she did not enjoy reasonable prospects of success and he offered to consent to the proceedings being dismissed other than as an abuse of process. 

32.         However, the appellant told me this morning that counsel who represented her before the Federal Magistrate did not have all the facts and documents before him when he made the concession.  Nevertheless, it does not seem to me that the amended application or the matters disclosed in the affidavit make out any ground of jurisdictional error.  I should add that counsel for the Minister submitted that the affidavit clearly went to the merits of the proceeding and that it was probably inadmissible even before the Federal Magistrate.  However, he very fairly did not object to me reading the affidavit and considering it as a submission which I have done.

33.         For the reasons which I have given above the orders I will make are that the appeal be allowed, that the orders made by the Federal Magistrate on 26 July 2004 be set aside and that the matter be remitted to the Federal Magistrates Court to decide again, the basis up on which the application should be dismissed and what order, if any, should be made imposing a requirement for the leave of the Federal Magistrates Court before any further application with respect to the same Tribunal decision is accepted for filing in that court.

34.         I should perhaps add that I was assisted by Mr Johnson's written submissions which I considered carefully before I came on to the bench, which enabled me to be able to give my reasons today after hearing very short further argument this morning.

Associate:

Dated:              18 November 2004