FEDERAL COURT OF AUSTRALIA

O’Donoghue v Attorney-General for the Commonwealth of Australia [2013] FCA 904

THE COURT ORDERS THAT:

1.    The applicant’s originating application filed 4 April 2013 is dismissed.

2.    The applicant is to pay the costs of the first and third respondents, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    This is one of a number of proceedings pursued by Mr O’Donoghue against, amongst others, the Attorney-General for the Commonwealth of Australia and the Minister for Immigration and Citizenship (I will refer to them collectively as the Commonwealth). The second respondent has filed a submitting notice in the proceeding.

2    The Commonwealth has applied for summary judgment against Mr O’Donoghue pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA) and r 26.01(1) of the Federal Court Rules 2011 (Cth) (the Rules). There is a supporting affidavit of Mr Corbould, the Commonwealth’s instructing solicitor.

3    On 4 April 2013, Mr O’Donoghue filed an originating application in this Court for an injunction restraining the Commonwealth from taking any action to remove or to permit his removal from Australia pending determination of other proceedings which he had brought in various courts. On 5 and 8 April 2013, I heard and dismissed Mr O’Donoghue’s urgent interlocutory application for and injunction with costs: O’Donoghue v Attorney-General for the Commonwealth of Australia [2013] FCA 319. Mr O’Donoghue sought leave to appeal from my refusal to grant an injunction. That application was heard the following day by Siopis J who dismissed Mr O’Donoghue’s application for leave to appeal and ordered him to pay the respondents’ costs: O’Donoghue v Attorney-General for the Commonwealth of Australia [2013] FCA 382.

4    On the following day, Mr O’Donoghue was surrendered to Ireland pursuant to a surrender warrant under s 23 of the Extradition Act 1988 (Cth). He was removed from Australia. Following his departure from Australia, Mr O’Donoghue has been held at Cloverhill Prison in Dublin.

5    On 7 May 2013, solicitors for the Commonwealth, the Australian Government Solicitor (the AGS), wrote to Mr O’Donoghue at Cloverhill Prison seeking his consent to the dismissal of his application in light of the fact that he had already been extradited. His proceeding had simply sought the injunction and no other relief. In that correspondence, the point was made that Mr O’Donoghue’s substantive application for an injunction, as distinct from an interlocutory injunction, remained on foot but in light of his extradition to Ireland the proceedings were otiose. The AGS sought his consent to the making of an order formally dismissing the application. His consent was not obtained. Mr O’Donoghue was also informed in that letter that if the consent was not forthcoming, a summary judgment application would be pursued together with costs.

6    On 18 June 2013, the AGS advised Mr O’Donoghue that the Commonwealth was prepared to accommodate his request for more time to consider his position but that an application would be made for summary judgment in the event that he did not sign and return a consent to the dismissal of his application by 30 June 2013. The AGS also brought to Mr O’Donoghue’s attention r 11.01 of the Rules in relation to filing a notice of change of address for service.

7    Mr O’Donoghue, by a letter dated 26 June 2013 from Cloverhill Prison, requested that his matter be adjourned sine die while he remained in custody. In a further letter of 28 June 2013, he raised objection to being requested to consent to the dismissal of the matter.

8    As no consent to dismissal was forthcoming and as Mr O’Donoghue has been removed from Australia, the Commonwealth pursued its application for orders under s 31A(2) FCA and r 26.01(1) of the Rules for the application to be dismissed with costs on the grounds that:

(a)    Mr O’Donoghue has no reasonable prospect of successfully prosecuting the proceeding;

(b)    the proceeding is frivolous or vexatious;

(c)    no reasonable cause of action is disclosed; and

(d)    the proceeding is an abuse of the process of the Court.

9    The Commonwealth filed its outline of submissions on 10 July 2013. Mr O’Donoghue made a further request for an adjournment sine die of the proceedings. The matter was listed for directions on 31 July 2013. I formed the view that there was no utility in granting a further adjournment of the matter because no prejudice would be sustained by giving Mr O’Donoghue the opportunity to file submissions and any affidavit material in response to the Commonwealth’s summary judgment application and submissions.

10    I gave Mr O’Donoghue 14 days to do so. No material has been filed by Mr O’Donoghue as at the time of publishing this judgment.

11    I also made orders for the Commonwealth’s application for summary judgment to be determined on the papers.

CONSIDERATION

12    Section 31A FCA relevantly provides:

31A    Summary judgment

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Court has apart from this section.

(5)    This section does not apply to criminal proceedings.

13    Rule 26.01 of the Rules relevantly provides as follows:

26.01    Summary judgment

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court; or

(e)    the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

(2)    The application must be accompanied by an affidavit stating:

(a)    the grounds of the application; and

(b)    the facts and circumstances relied on to support those grounds.

(3)    The application and the accompanying affidavit must be served on the party against whom the order is sought at least 14 days before the hearing of the application.

(4)    If an order is made under subrule (1) dismissing part of the proceeding, the proceeding may be continued for that part of the proceeding not disposed of by the order.

(5)    If an order is made under subrule (1) giving judgment for the applicant against the respondent for the whole or part of the applicant’s claim, a respondent who has a cross claim against the applicant or some other party may:

(a)    continue to prosecute the cross claim against the applicant or other party; and

(b)    apply to the Court for an order staying execution on or enforcement of the judgment until the respondent’s cross-claim is determined.

14    As noted in Spencer v The Commonwealth of Australia (2010) 241 CLR 118 (at [53]) per Hayne, Crennan, Kiefel and Bell JJ, ‘s 31A FCA departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered’. Their Honours noted (at [56]) that:

Because s 31A(3) provides that certainty of failure (“hopeless” or “bound to fail”) need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different inquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression “no reasonable prospect of successfully prosecuting the proceeding” by reference to what is said in those earlier cases.

15    The only relief sought by Mr O’Donoghue is an injunction restraining the respondents from taking any action to remove or permit his removal from Australia before the hearing and final determination of various proceedings.

16    Having been surrendered to Ireland and removed from Australia on 10 April 2013, further pursuit of the proceeding is futile. It has already been held and upheld on an application for leave to appeal that there was no merit in the original application seeking to restrain Mr O’Donoghue’s removal. There is certainly no utility in the Court granting an injunction restraining the Commonwealth from taking action to remove him in circumstances where he has already been removed. There is no basis on which the Court would or could grant the relief sought and no arguable case whatsoever for it.

17    It is clear, as the Commonwealth submits, that the application has no prospects, let alone reasonable prospects of success.

18    It follows as submitted for the Commonwealth that Mr O’Donoghue’s application must be dismissed with costs.

19    The following orders are made:

1.    The applicant’s originating application filed on 4 April 2013 is dismissed.

2.    The applicant is to pay the costs of the first and third respondents, to be taxed if not agreed.

Associate:

Dated:    6 September 2013