FEDERAL COURT OF AUSTRALIA

SZVCP v Minister for Immigration and Border Protection [2016] FCA 1408

ORDERS

THE COURT ORDERS THAT:

1.    The Applications for leave to appeal are dismissed.

2.    The Applicant is to pay the costs of the Respondent Minister.

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

REASONS FOR JUDGMENT

1    The present Applicant, known by the pseudonym SZVCP, has commenced a number of proceedings in the Federal Circuit Court of Australia, being proceedings SYG3004/2014; PEG142/2015; and PEG261/2015.

2    He is presently in detention in Victoria. Each of the proceedings is presently listed for hearing before the Federal Circuit Court on 19 and 20 December 2016. It is therefore desirable to resolve the fate of each of the applications in this Court without delay.

3    There are presently before this Court Applications for leave to appeal from four separate “decisions” of a Judge of the Federal Circuit Court. It matters not for present purposes how each of the matters sought to be challenged by the Applicant is characterised. The same “decisions” have been made in each of the three proceedings pending in the Federal Circuit Court and the present judgment of this Court resolves each of the Applications for leave to appeal in each of those three proceedings.

4    Leave to appeal is required because each “decision” is an interlocutory decision: Federal Court of Australia Act 1976 (Cth), ss 24(1)(d) and 24(1A). As a general proposition, leave may be granted where the judgment sought to be appealed is attended with sufficient doubt to warrant it being reconsidered and where to refuse leave would result in substantial injustice. These two considerations “provide general guidance which the Court should normally accept, [but] there continue to be cases raising special considerations ‘and the court should not regard its hands as tied in any case beyond this’”: Rawson Finances Pty Ltd v Commissioner of Taxation [2016] FCAFC 95 at [39] per Robertson, Moshinsky and Bromwich JJ. Particular caution is exercised in granting leave to appeal where the decision is one as to practice and procedure. A party who seeks to appeal against an order made in the exercise of a discretion upon a matter of practice and procedure, it has been said, undertakes “a formidable task”: Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 393 per Wilcox and Gummow JJ.

5    On the hearing of the applications for leave to appeal yesterday, the Applicant appeared via a video link from Melbourne; the Respondent Minister was represented by a solicitor.

The hearing of all three proceedings together

6    The first of the four “decisions” sought to be challenged is to be found in Order 1 as made by the Federal Circuit Court Judge on 12 August 2016, when each of the three proceedings was listed for final hearing on 19 October 2016. Leave to appeal from that decision is refused. Insofar as that decision focussed on the proposed hearing in October 2016, it now assumes only academic interest; that date has come and gone. That order was in any event vacated on 26 September 2016 when the Federal Circuit Court Judge vacated the hearing date on 19 October 2016 and fixed each of the three proceedings for final hearing on 19 and 20 December 2016. Insofar as a complaint is made as to the time within which the Applicant was given time to prepare, it may be noted that there was a period of some two months between August and October; it may be further noted that the vacation of the October 2016 hearing date consequently gave the Applicant a further two months in which to prepare. The time within which the Applicant has had time to prepare well predates, of course, August 2016. No complaint may be made as to the time extended to the Applicant within which he was required to prepare his cases for hearing.

7    To the extent that the Order made on 12 August 2016 was that all three proceedings were to be heard “together” and to the extent that that remains the manner in which the three proceedings are to be resolved, it is to be noted that the Federal Circuit Court Judge has left open the prospect of revisiting this decision. That Judge thus stated:

… I propose to fix the matter for Wednesday, 19 October at 9.30 am before me. Mr Applicant, if in the course of the hearing it becomes apparent that there is any real unfairness in relation to the conduct of the three cases together, either from the submissions or from the evidence, or during the course of the hearing, the court will accommodate considering at that stage whether or not the proceedings should be in some way heard consecutively, or in some way adjourned in relation to one or other of the matters, but I don’t propose at this point to change the order that was made listing the three matters, as I have foreshadowed, on 19 October. …

Previously in the transcript, the Federal Circuit Court Judge had foreshadowed that at “the moment it seems to me appropriate to have the matters still heard concurrently”. Given the willingness of the Federal Circuit Court Judge to revisit the order fixing all three matters together if “there is any real unfairness”, no substantial injustice is occasioned to the Applicant in refusing leave to appeal.

The failure to make an order for referral

8    The second of the four “decisions” sought to be challenged is a decision made on 12 August 2016 whereby the Federal Circuit Court Judge refused an application for the appointment of pro bono counsel and/or to “invoke the Court’s powers and authority under Part 12 of the Federal Circuit Court Rules to help and assist with the preparation of amended applications, affidavits, subpoenas, writing of submissions and oral arguments in Court…”. The making of that decision is to be found in the transcript of an exchange between the Applicant and the Federal Circuit Court Judge on that day. When rejecting that application, the Federal Circuit Court Judge stated (without alteration):

Further, this court does not have to give reasons in relation to declining to appoint a lawyer. I don’t see that the complexity of the matter or any other reason why at this stage the court should take the step of requiring someone to act for you, and I don’t propose to make any direction under part 12 and I don’t propose to make – to give any reasons in that regard. And that then raises the issue of – you said that there was some dealing you had with the registrar. If you think that dealing is in some way relevant to your case you can agitate that in your affidavit and raise it. Is there anything else you want to seek in terms of orders for hearing?

Although professing to be under no obligation to provide reasons for refusing to refer the Applicant for pro bono assistance, the Judge did in fact provide at least one explanation – namely, the absence of any “complexity” in the matters raised for resolution.

9    Part 12 of the Federal Circuit Court Rules 2001 (Cth) is headed “Court Referral for Legal Assistance”. Rule 12.02 provides as follows:

Referral for legal assistance

(1)    The Court may refer a party to a lawyer for legal assistance by issuing a referral certificate, in accordance with the approved form.

(2)    When making a referral under subrule (1), the Court may take the following matters into account:

(a)    the means of the party;

(b)    the capacity of the party to otherwise obtain legal assistance;

(c)    the nature and complexity of the proceeding;

(d)    any other matters the Court considers appropriate.

(3)    The referral certificate may state the kind of legal assistance for which the party has been referred.

(4)    The Registrar will attempt to arrange for the provision of legal assistance in accordance with the referral certificate to a Pro Bono lawyer.

Rule 12.03 provides:

A party has no right to apply for a referral

A party is not entitled to apply to the Court for a referral under rule 12.02.

In resisting the grant of leave to appeal, it is submitted on behalf of the Minister that in making an order for referral the Court is discharging “an administrative function in aid of the jurisdiction of the Court” and is not exercising any judicial power: Schokker v Commissioner of Taxation (No 2) [2000] FCA 1734 at [10], (2000) 106 FCR 134 at 138 per French J (as his Honour then was). It followed, so the submission went, that the refusal to make an order was “not a judgment able to be subject to appeal”. An analogy was sought to be drawn with Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42, (2003) 128 FCR 353. In emphasising the nature of the “administrative function” being performed, French J subsequently observed in Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 319:

[10]    In deciding whether to refer a matter to the Registrar under O 80 r 4, a judge undertakes an administrative function in aid of the jurisdiction of the Court: Schokker v Commissioner of Taxation [2000] FCA 1734. The decision whether to issue a referral certificate does not depend necessarily upon any assessment of the strength of the case. Indeed as O 80 r 1(4) makes clear, a referral under O 80 is not an indication that the Court has formed any opinion on the merits of a litigant’s case. Where a case is patently hopeless then that might form a basis for refusing an O 80 certificate. The ‘interests of justice’ is a wide term. It can encompass a circumstance in which, regardless of the merits of his appeal, the significance of the outcome to an appellant and perhaps to third parties such as family members is such that the appellant should be afforded every opportunity to properly present his or her case and should have legal representation for that purpose. That does not mean that if legal representation is unavailable the litigation must come to a halt. It may be that, if in the end, no pro bono practitioner is found who is willing to act then the appellant would have to represent himself.

10    Section 24 of the Federal Court of Australia Act 1976 (Cth) confines the appellate jurisdiction of this Court to entertaining an appeal from a “judgment”, a term which is further defined in s 4 of that Act as meaning “a judgment, decree or order, whether final or interlocutory…”.

11    When considering a like power, the Court of Appeal of the Supreme Court of New South Wales in Rizk v FA Constructions Australia Pty Ltd [2016] NSWCA 155 expressed the tentative view that “there is good reason to think” that the power of that Court to entertain an appeal from an “order” did “not extend to a referral…”: [2016] NSWCA 155 at [13]. An order had there been made limiting the pro bono referral to the provision of advice as to the prospects of success. Mr Rizk sought to have that order varied by deleting that limitation. After referring to the provisions providing for the making of an order for referral in Pt 7 of the Uniform Civil Procedure Rules 2005 (NSW), Leeming JA in an ex tempore judgment observed:

[15]    This contextual background illustrates the proposition that, although the referral is made “by order” of the court, it is in effect an administrative arrangement involving no issue between the parties. Indeed, the provision in r 7.33(5) that “[n]othing in this Division requires the Court to make a referral, or to consider a litigant’s case for referral, under this Division” makes it clear that no rights are conferred; rather, there are administrative arrangements designed for the better administration of justice.

[16]    There are various provisions in the legislation governing the operation of the court which do not give rise to “decisions”, which are justiciable in litigation between two parties. What are described as “intra-curial arrangements for the transaction of the business” of the court, whether in the Court of Appeal or any Division, pursuant to s 39 of the Supreme Court Act are an example of necessary administrative decision-making. Such arrangements give rise to no right of challenge by litigants.

But the exercise by a judge of a non-judicial function in a manner not in accordance with law may attract declaratory relief: Sinkovich v Attorney-General (NSW) [2013] NSWCA 383 at [75] to [76], (2013) 83 NSWLR 783 at 801 to 802 per Basten JA (Bathurst CJ, Beazley P, Price and Beech-Jones JJ agreeing).

12    Even in the absence of an “entitlement” to apply for the making of an order for referral and even though the making of — or refusal to make — such an order may be characterised for some purposes as “administrative”, some reservation is nevertheless expressed as to whether the refusal to make an order for referral cannot be exposed to judicial scrutiny. Before any concluded view should be expressed, it would be desirable for the question to be the subject of detailed argument. Even if not directly exposed to scrutiny, it may be that the refusal to make an order may expose a litigant to the very real prospect of procedural unfairness and consideration may have to be given to whether the denial — or the absence — of legal assistance may deny a litigant a fair opportunity to either seek access to the Courts or a fair hearing. But such a case may be hard to make out: cf. Robinson v Commissioner of Police, New South Wales Police Force [2013] FCAFC 64 at [147] to [149].

13    For the purposes of resolving the present application it is, however, sufficient to conclude that no arguable error has been exposed in the Judge’s assessment of the lack of “complexity” not warranting the making of such an order. If the final resolution of the issues in any one or other of the proceedings does expose an unexpected “complexity”, any such issues can be resolved by that Court. If necessary, consideration can again be given by the Federal Circuit Court to the request for a pro bono referral and the discretion exercised afresh. A refusal properly to consider any such renewed request for pro bono assistance may expose appellable error. An appeal always lies, of course, from a final decision of the Federal Circuit Court to this Court. No substantial injustice to the Applicant emerges, at least at this stage, by refusing leave to appeal from the decision refusing to make an order for referral.

The refusal to disqualify

14    The third of the “decisions” sought to be appealed was the refusal of the Federal Circuit Court Judge on 12 August 2016 to disqualify himself. Prior applications made for disqualification had been refused: SZVCP v Minister for Immigration & Anor (No 2) [2015] FCCA 2577; SZVCP v Minister for Immigration & Anor [2016] FCCA 950. When refusing a yet further application for disqualification made on 12 August 2016, the Federal Circuit Court Judge on that occasion stated:

HIS HONOUR: … Now, Mr Applicant, you’ve made reference to other matters that you want to agitate. At the moment what the court has done is provide a timeframe which will permit the matter to be heard. The making of the directions in relation to fixing the matter for hearing is not conduct by reason of which a fair minded person, lay observer, might not bring an independent and impartial mind to the determination of that on its merits, and it’s for that reason that I don’t propose to engage in delivering a further judgment in relation to your application for disqualification. I regard that application as being without any merit.

No arguable error arises by reason of anything there stated.

15    Nor does any “sufficient doubt” arise in respect to the Judge’s refusal to disqualify himself by reason of the decision of the Full Court in SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24, (2016) 238 FCR 15. That was an appeal from a decision of the Federal Circuit Court involving the same Judge whose decisions are now under scrutiny: SZVCP v Minister for Immigration & Anor [2015] FCCA 2576. The Full Court there concluded that the Federal Circuit Court Judge had denied the present Applicant procedural fairness. In allowing the appeal, the Full Court there addressed the question as to whether the proceeding should be remitted to a different Judge as follows:

[46]    The applicant submitted that any order for remittal should be to a judge other than the primary judge who heard the interlocutory applications. We see no basis for such an order. In our opinion which judge of the Federal Circuit Court should hear the matter falls for the consideration of the Chief Judge of that Court.

Clearly enough, the Full Court did not consider that the basis upon which the appeal was allowed itself warranted a different Judge being allocated to the future conduct of the case. That was a decision to be made by the Chief Judge of the Federal Circuit Court.

16    Whether or not questions as to the allocation of cases to a particular judge are justiciable (cf. Rajski v Wood (1989) 18 NSWLR 512), the prior involvement of the same Judge in the management of the Applicant’s proceedings; that Judge’s conduct in ensuring that all of the Applicant’s three proceedings were to be heard by him; and that Judge’s conduct of the directions hearing in August 2016 do not provide any basis to impugn the Judge’s decision to refuse to disqualify himself.

17    There is no reason to distinguish between any of the three proceedings.

18    Leave to appeal from this third “decision” is also refused.

Attendance in person -v- a video link

19    The fourth of the “decisions” sought to be reviewed is to be found in Order 2 as made by the Federal Circuit Court Judge on 12 August 2016. That Order was as follows:

2.    Pursuant to ss. 66, 67, 68, and 69 of the Federal Circuit Court of Australia Act 1999 (Cth) the Applicant be brought to a secure Court in Melbourne for appearance, giving of evidence and submissions on the hearing date by video link.

20    Different Judges adopt differing views as to the appropriateness of conducting a hearing by way of video link as opposed to having a witness or a party physically present in Court. Many of those decisions were dependent upon the facts presented; others expressed differences in principle. See: Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 at [21] to [22]; Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd [2001] NSWSC 651 at [25] to [26], (2001) 53 NSWLR 1 at 5 per Palmer J.

21    In the circumstances of the present case, the Federal Circuit Court Judge concluded that the Applicant could be heard by way of video link. That was intrinsically a decision in respect of a matter of practice and procedure. There is no sufficient reason to question the decision made; nor has the Applicant demonstrated any substantial injustice. Contrary to the submission advanced by the Applicant, the Federal Circuit Court Judge did not exclude him from making a relevant submission. Reliance was placed by the Applicant upon an exchange between the Federal Circuit Court Judge and the legal representative of the Minister on 15 September 2015 with the Judge then observing:

I don’t propose to make that order. The applicant can attend via video link from the appropriate detention centre.

That submission fails to address the fact that the attendance of the Applicant in court was a matter which was again canvassed on 12 August 2016. On that latter occasion there was an exchange focussing on the prospect that the Applicant may have been brought to a detention centre in Sydney rather than Melbourne. The Applicant advanced his submission that he “want[ed] to appear in person and for the writ of habeas corpus to issue…”. After the hearing of submissions, Order 2 was made. There was no occasion to revisit the view which had been previously expressed in September 2015. There is, moreover, no reason to question the willingness of the Federal Circuit Court Judge to revisit Order 2 if, as he previously indicated to the Applicant, “any real unfairness” emerged. Although that comment was made in respect to the hearing of the three proceedings together, there is no reason to question the willingness of the Judge to revisit other Orders made (including Order 2).

22    Although there may be many differences between the conduct of a substantive hearing and the hearing of the present applications for leave to appeal, it is noted that the Applicant yesterday experienced no difficulty advancing submissions. The one matter that did emerge was the fact that the Applicant did not have readily available to him an affidavit that had been filed. A copy of that affidavit was printed out by the Registry in Melbourne and after a short adjournment made available to the Applicant.

CONCLUSIONS

23    Each Application for leave to appeal should be refused in each of three proceedings pending in the Federal Circuit Court. The Applicant has not established that any of the “decisions” sought to be challenged is attended with sufficient doubt to warrant the grant of leave and has failed to make out any substantial injustice.

24    Each of the applications for leave, it may be further noted, has all the hallmarks of an applicant seeking to postpone the day of final hearing as long as possible. An express concern of the Applicant, a concern which he repeatedly agitated and voiced with some considerable passion, focussed on the prospect of the allocated Federal Circuit Court Judge hearing his proceedings. But there would arise “mischief for the administration of justice and judicial independence” (Rajski v Wood (1989) 18 NSWLR at 519 per Kirby P) should a litigant be able to himself select the Judge that he wanted to hear his case.

25    There is no reason why costs should not follow the events.

THE ORDERS OF THE COURT ARE:

1.    The Applications for leave to appeal are dismissed.

2.    The Applicant is to pay the costs of the Respondent Minister.

Associate:    

Dated:    25 November 2016