FEDERAL COURT OF AUSTRALIA

DKX17 v Federal Circuit Court of Australia [2018] FCA 515

ORDERS

THE COURT ORDERS THAT:

1.    The application for prerogative relief be dismissed.

2.    There be one set of costs in each of NSD1973/2017, NSD1974/2017, NSD1975/ 2017 and NSD1976/ 2017, and that it be taxed as one half day hearing.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an application that orders in the nature of writs of certiorari issue to the Federal Circuit Court of Australia to quash its four decisions to refuse an extension of time under s 477 of the Migration Act 1958 (Cth) to each of the five applicants who are, respectively, husband and wife and three of their children, being two daughters and a son. The trial judge refused extensions of time in four separate proceedings, the first by the husband and wife and the other three by each of the three children for, substantively, the same reasons and on the same grounds.

2    At the time of the hearing before her Honour, none of the applicants was represented. When the applications came before me in this Court for case management on 8 December 2017, counsel appeared for the applicants and indicated that they would be seeking to rely on submissions and an amended originating application in each matter that were to be prepared, and I fixed the case for hearing today.

3    Relevantly, s 477(2) provides:

(2)    The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order. (emphasis added)

Background

4    The circumstances may briefly be summarised in the context of the issues which arise for consideration. Those issues are whether her Honour erred in, first, failing to grant the applicants an adjournment when the matter came before her on 27 October 2017, on which day her Honour made the decisions complained of, secondly, identifying correctly the test which she applied to whether the applicants should be granted an extension of time, and, thirdly, her assessment that there was no apparently sufficiently arguable case of error on the part of the then Refugee Review Tribunal in the way in which it decided, on 21 November 2013, to affirm the decisions of the Minister’s delegate not to grant each applicant a protection visa.

Background

5    The applicants are Fijian Indians and citizens of Fiji. The Tribunal found that they had suffered persecution in their home village of Sabeto where they occupied farming land under a lease granted to the husband and wife which they exploited. The Tribunal found that the behaviour of indigenous Fijians in the village amounted to persecution towards the applicants by reason of their race, as Fijian Indians. It found each of the applicants to be a credible witness, and that each had suffered conduct amounting to persecution in the period before the 2006 coup d’état in Fiji that changed the Government.

6    In essence, the Tribunal found that the applicants had come to Australia in January 2006, prior to the coup and that, subsequent to it, the persecutory behaviour which they had experienced and feared had ceased to exist in Fiji.

7    The Tribunal found that four of the applicants had subsequently visited Fiji in either 2007, 2008 or 2010, on which occasions they had come to no harm from the persons from whom they claimed to fear and had suffered harm prior to their 2006 departure to Australia. The Tribunal found that, for example, the wife did not claim that when she visited in Fiji in October 2007, the villagers or anyone else threatened or attempted to sexually assault her, despite that being one of her fears which the Tribunal had found had been well-founded in respect of the period prior to the coup. It also found that she had expressed no intention of returning to live in Sabeto.

8    The Tribunal found that at the time of its decisions:

The situation for Fiji Indians has improved since the 2006 coup and that race relations are generally harmonious.

9    It concluded that, having considered the various bases on which the applicants claimed to fear both persecution and significant harm for the purposes s 36(2)(a) and (aa) of the Act, it was:

not satisfied that if the applicants return to Fiji, there is a real chance either will be persecuted in the reasonably foreseeable future for a Convention reason.

10    It also found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of any of the husband, wife or the three children being removed from Australia to Fiji, there was a real risk that either he or she would suffer significant harm as defined in s 36(2A) of the Act.

11    Unusually, the Tribunal also considered, after taking into account the Ministerial guidelines relating to the Minister’s discretionary power under s 417 of the Act, that the applicants’ cases should be referred to the Department to be brought to the Minister’s attention. It made this reference after having regard to the circumstances of each of the applicants. In particular, it did so conscious of its findings that they had had traumatic experiences in Fiji involving serious assaults on the husband and two of his children, would face serious hardship were they to return there, and the fact that the husband’s three sisters and then-widowed father, who has subsequently passed away, were apparently Australian citizens.

12    On 22 November 2013, being the same day on which it notified the applicants of its unfavourable decisions, the Tribunal wrote to the manager of the Ministerial Intervention Unit, referring the applicants’ cases to the Department for consideration under s 417.

13    On 25 November 2013, the Director, Ministerial Intervention of the Minister’s Department wrote to the applicants’ representative, advising of the Tribunal’s reference for consideration under s 417. Her letter stated that the applicants:

should also be aware that the Minister is under no obligation to intervene in your clients’ case. This means that your client should not discontinue any application for judicial review on the expectation that the Minister will intervene. (emphasis added)

14    As is evident, that advice was not specifically directed to the position in which the applicants found themselves, since they had not commenced any proceedings that they might discontinue. The letter did not explain to them, in plain English, that they, in effect, should not refrain from taking proceedings to protect their position.

15    Over the next three and a half years, the Department required the applicants to undergo health checks, police checks and other scrutiny until, somewhat out of the blue, it wrote to the applicants’ community volunteer representative on 13 July 2017, advising that the Assistant Minister had personally considered the Tribunal’s request and had decided that it would not be in the public interest to intervene.

16    In the event, the period of delay between the Tribunal’s adverse decisions and the commencement of proceedings in the Federal Circuit Court was over 1300 days; an unusually long period, the bulk of which appears to have been due to the apparent willingness of the Minister’s Department to continue giving consideration to the Tribunal’s reference.

The proceedings before the Federal Circuit Court

17    The applicants applied soon after hearing of the Assistant Minister’s decision, to the Federal Circuit Court for an extension of time in each of their cases, the husband and wife doing so on 31 July 2017 and each of their children on 4 August 2017.

18    On 20 September 2017, when each of the proceedings came before the trial judge on a directions hearing, her Honour explained to the applicants the nature of the issues and gave them leave to file and serve any further evidence and submissions in support of their application for an extension of time. She gave them contact details of legal services providers and interpreting and translation services, in documents headed in their own language. She then fixed the matter for the hearing of the s 477(2) applications on 27 October 2017.

19    On 27 October 2017, as appears in the transcript of the proceedings in evidence before me, the applicants applied at the commencement of the hearing for an adjournment. They had previously filed a submission dated 19 October 2017, as her Honour recorded in her reasons. That submission drew her Honour’s attention to the passages in the court book that showed that the Tribunal had referred each of the visa applications for Ministerial intervention under s 417. They told the primary judge that the Department’s consideration of the Tribunal’s reference had appeared to them to be proceeding favourably until their receipt of the letter of 13 July 2017 when they were informed of the Assistant Minister’s decision. They said that in those circumstances, they had applied promptly to the Court below and should be granted the extension of time. The applicants put their request for an adjournment on the basis that, about two weeks earlier, one of them had spoken to someone about seeking legal aid. They informed her Honour that the person had said they could not have an appointment because it was too short a time period before the hearing.

20    Her Honour then refused the adjournment on the basis that, as she said, without having heard from the applicants as to the merits of their claim, the Tribunal’s decision, on its face did not appear to be affected by any jurisdictional error. Her Honour observed that, in essence, they were arguing that they disagreed with the Tribunal’s conclusions. In those circumstances, her Honour found that they had had an opportunity to obtain legal advice and not having done so she would refuse the adjournment in the exercise of her discretion.

21    The applicants told her Honour that the reason for their delay in seeking review of the Tribunal’s decisions was that they were, in effect, relying on the fact that the s 417 referral appeared to be being processed in the ordinary way and that they had no reason to think it would be ultimately refused until notified on 13 July 2017. They again applied for more time to get a lawyer to enable them to prepare their case properly so that they could have justice, as they saw it, done.

22    Her Honour gave reasons for refusing the extension of time. She said that the applicants’ explanation for the delay was that they had sought Ministerial intervention under s 417. The trial judge applied authorities that established that an applicant who sought Ministerial intervention under s 417 communicated a decision that he or she was abandoning the choice of challenging the decision of the Tribunal in the courts on grounds that may otherwise have been available under the Act. Her Honour applied M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520, among other cases. She found that it was open to the applicants to have sought judicial review of the Tribunal’s decision at the same time as the Ministerial intervention application was progressing and that in the circumstances:

the seeking of Ministerial intervention is not a satisfactory explanation for the inordinate delay in excess of 1,300 days.

23    She said that, apart from the attempt to contact or obtain legal aid two weeks earlier, there was no other evidence of any attempt by the applicants to seek or obtain legal advice and that that was why she had refused the adjournment. She then found that the applicants had had nothing to say in relation to the manner in which the Tribunal’s decision might be found to be affected by jurisdictional error and that there was none apparent on the face of its decision record. Her Honour found that the Tribunal’s findings, that the applicants were no longer at risk of persecution or significant harm within the meaning of s 36(2)(a) and (aa), were they to be returned to Fiji, appeared to be open to it on the evidence and material before it for reasons that it gave. The trial judge found that the applicants’ complaints were no more than in the nature of disagreement with the Tribunal’s conclusion, so as to amount to seeking merits review.

24    In those circumstances, her Honour found that the applicants had insufficient, to no, prospects of success, so that the grant of an extension of time was likely to be an exercise in futility.

25    The Minister did not contend that he would suffer any prejudice from any extension, and her Honour accepted that there was prejudice to the applicants in refusing to extend time to seek judicial review. She had regard to the significant public interest in the finality of judicial decisions, as explained in authorities such as Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-496 [15]-[17] per McHugh J. She concluded that in light of the unsatisfactory explanation for the applicants’ delay and the lack of prospects of success of their application for judicial review of the Tribunal’s decision, she was not satisfied that it was necessary in the interests of justice that time be extended. Accordingly, she dismissed each of the applications and ordered that the applicants pay the Minister’s costs fixed in the sum of $2,000 in each case.

The applicants’ submissions in this application

26    Counsel for the applicants argued that her Honour’s reasons exhibited jurisdictional error, warranting the quashing of her dismissal of the applications for extensions of time, first, because when refusing the adjournment her Honour had not heard the applicants on the merits of their substantive claims, yet found against them on that question. Secondly, they argued that her Honour had approached the question of granting or refusing the extension on the basis that the applicants had applied for and sought ministerial intervention under s 417, when the fact was that, instead, the Tribunal had initiated that process. Thirdly, the applicants argued that the Tribunal had made a jurisdictional error in its assessment of their position, were they to be returned to Fiji, because it had failed to consider, in accordance with the authorities, whether it would have been reasonable for them to relocate to another place than Sabeto. In that regard, the applicants relied on SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 and the recent decision of the Full Court in CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14. In substance, the applicants argued that the Tribunal’s reasoning, on its face, disclosed that it had found that the applicants would not return to Sabeto. Therefore, they argued, the authorities on which they relied obliged the Tribunal to consider and assess whether it was reasonable for them to relocate to a particular place or places in Fiji, but it had not done so.

Consideration

27    In M211 of 2003 (2004) 212 ALR 520 at 525-527 [16]-[24], Black CJ, Sackville and Sundberg JJ considered the authorities dealing with an extension of time in which to bring proceedings challenging an administrative decision in the context of an applicant’s decision, in the meantime, to seek Ministerial intervention under s 417 of the Act. (Their Honours did not address s 477, because it did not then apply to the circumstances.) The Full Court noted what McHugh J had said in Ex parte Marks 177 ALR 495-496 at [15]-[17] in refusing an extension of time under the then High Court Rules to seek a writ of certiorari, as well as to a number of decisions where judges of this Court had applied that decision (212 ALR at 525-527 [16]-[24]). They referred to some of those decisions that had treated the applicant as having abandoned the right to seek judicial review by his or her first pursuing, until its ultimate refusal, an application under s 417 for Ministerial intervention. However, the Full Court did not decide that point, since it considered that the prospects of the application before it succeeding on judicial review were very poor (212 ALR at 527-528 [27], 529 [36]).

28    The position before the trial judge here was different in the sense that it was not the applicants who had initiated the procedure under s 417, but the Tribunal. The applicants acquiesced, it may be said, understandably, in the Tribunal’s reference to the Minister’s Department in support of a more favourable outcome. The Department’s letter of 25 November 2013 was not expressed in the clearest of terms, apposite to the particular situation in which the applicants found themselves, but rather, seems to have been a standard letter addressed to the situation of a person who seeks himself or herself to have the Minister intervene, as opposed to that occurring on a reference from the Tribunal. When the Department is dealing with persons whose first language is not English and, whose situation is particular, it is important that letters of this kind are written in plain terms to bring to the person’s notice the danger of the particular course of action which the applicants, in this case, appear to have allowed to transpire.

29    It may be that the considerations in some of the decisions to which the Full Court referred in M211 of 2003 212 ALR 520, were potentially equally apposite to the applicants’ case. However, the applicants found themselves in the position that, after deciding their claim adversely to them, the Tribunal of its own initiative referred their cases to the Minister under s 417, seeking that he consider giving them a more favourable outcome.

30    In my opinion, her Honour appears to have proceeded on the misapprehension that it was the applicants’ decision to seek the Minister’s intervention under s 417, in lieu of their deciding to pursue judicial review. However, they were in a position where the Tribunal had sought that intervention in their favour as being what it saw as the, or an, appropriate way of progressing the consideration of their migration status. In those circumstances, the substantive delay before the applicants commenced their proceedings below occurred because they had been induced to believe that, first, the Tribunal regarded their position as justifying it making a reference under s 417, and secondly, after the Tribunal did so, the Department duly considered that referral for virtually the entire period of delay. They were subjected to the very checks during that period that were calculated to convey to them the impression that the Tribunal’s reference was receiving consideration in due course.

31    The applicants did not choose to make the s 417 reference. Rather, that reference occurred because a responsible part of the Executive Government, being the Tribunal that had rejected their claim, told them as lay people, that the reference that it made was, in their circumstances, the appropriate way to deal with their application for a visa. Of course, they accepted and acquiesced in what the Tribunal had initiated. But, that conduct had a different quality from a decision by a disappointed applicant in the Tribunal to seek a remedy under s 417 instead of choosing immediately to seek judicial review.

32    In my opinion, the applicants did explain why they came to make their application under s 477(2)(a) after the 35 day period following the Tribunal’s decisions. However, the question for decision under s 477(2)(a) is whether the applicants specified to her Honour why they considered that it was in the interests of the administration of justice that it was necessary for her Honour to grant them the extension that they sought. That question included consideration of the merits of the application for judicial review. That then raises the applicants’ contention that her Honour applied an incorrect test on the extension application and failed to appreciate that the Tribunal may have made a jurisdictional error.

33    In MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478 at 482-483 [21], 486 [38], Tracey, Perry and Charlesworth JJ found no error in, and expressly endorsed, the approach of the primary judge in that case as to how the Federal Circuit Court should have approached the grant of an extension of time under s 477(2) as follows:

21    Her Honour nonetheless continued to express her “disquiet” about the manner in which the FCC had dealt with the factor of the merits of the appellant’s proposed grounds of review in considering the application to extend time “lest these reasons be taken as an endorsement of the approach taken by the Federal Circuit Court” (at [61]). In this regard, her Honour held first that:

62.    … it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer (1998) 195 CLR 516; 153 ALR 276; [1998] HCA 27 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

63.    The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ v Federal Magistrates of Australia (2013) 236 FCR 442; 139 ALD 252; [2013] FCA 1284 … at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision. (emphasis added)

34    In substance, an application under s 477 is one in which the applicant for an extension must satisfy the Federal Circuit Court that it should extend the 35 day period prescribed in s 477(1) because it is necessary in the interests of the administration of justice to make the order. That involves the applicant identifying for the Federal Circuit Court a proper basis for the exercise of its discretion, as s 477(2)(a) requires.

35    Here, the applications to the Federal Circuit Court identified the applicants’ grounds for the extension of time as being that the Tribunal had made the reference under s 417 on 22 November 2013 and that they had complied with all the Minister’s requests, such as for health and character checks, and had done nothing more until the Minister’s decision dated 13 July 2017 to refuse the application had been communicated to them. Their ground for judicial review was that:

The Tribunal failed to take into consideration the significant physical ill treatment and denial of capacity to earn a livelihood of any kind as well as failed to recognise us as refugees based on the information before it and contrary to the Migration Act.

36    The applicants’ case below was that the Tribunal’s decision on its face revealed an error as specified in the ground of review. They contended that her Honour ought to have been able to perceive some such error, despite the absence of any analysis or assistance of a meaningful kind from them. It was open to the trial judge to conclude that the applicants’ case had little to no prospects of success. The ground of review below wrongly asserted that the Tribunal had failed to take into consideration the applicants’ past ill-treatment and their capacity to earn a livelihood. The Tribunal had taken those matters into consideration. The balance of the ground was a misconceived invitation to the Court below to undertake merits review.

37    Understandably, lay persons, such as the applicants are not able to analyse the intricacies of judicial decisions under the Act or the meaning of jurisdictional error. The argument before me on this application, as to the interests of justice, was that the applicants had a real case that the Tribunal erred in failing to consider whether it was reasonable for the applicants to relocate to somewhere in Fiji instead of returning to their village.

38    I will consider that argument on the assumption that it is open on an application for a writ of certiorari to quash her Honour’s decisions. Relevantly, the Tribunal did not need to consider the question of relocation and did not approach its decision-making on that basis. It found that the wife had not expressed any intention of returning to her village. The Tribunal also found that the reasons why the applicants had been subjected in the past to the treatment amounting to persecutory conduct in their village, no longer existed there. It then found that:

Taking these factors together, I consider the chance remote that the applicants [being the husband and wife] will be subjected to serious harm amounting to persecution by the villagers who previously targeted them, or people associated with them, if they return to Fiji.

39    In that context, once it found that the applicants did not wish to return to the village, the Tribunal was not required to go on to consider that they might not want, or be able, to go somewhere else. The fact that they did not wish to return to their village was irrelevant, once the Tribunal had found that, first, they could return there and, secondly, there was no more than a remote chance that they would be subjected to the significant or serious harm that they feared. The Tribunal found that, by reason of both the changes of Government and circumstances in Fiji in the seven years that the applicants had remained in Australia, there was no real chance or risk that they would suffer persecution or conduct amounting to significant harm in their village or anywhere else in Fiji for the purposes of s 36(2)(a) and (aa) were they to return to Fiji or to Sabeto. As French CJ, Hayne Kiefel and Keane JJ said in SZSCA 254 CLR at 327 [23]:

If a person could have relocated to a place within his own country where he could have no well-founded fear of persecution, and where he could reasonably be expected to relocate, then the person is outside the country of his nationality because he has chosen to leave it and seek asylum in another country. He is not outside his country owing to a well-founded fear of persecution for a Convention reason. The person is not, within the Convention definition, a refugee. (emphasis added)

40    The applicants sought to rely on what Tracey, Mortimer and Moshinsky JJ had said in CSO15 [2018] FCAFC 14 at [42] and [47] as requiring the Tribunal to consider whether there was some place, other than Sabeto, to which the applicants could relocate and that it was practical to expect them to do.

41    In my opinion, properly understood, the Tribunal’s reasons do not suggest that the applicants could not return to Sabeto if they chose. Rather, they, through the wife, had expressed to the Tribunal no intention of wanting to return there to live. The Tribunal had found that, when the wife visited Sabeto in 2007, she did not claim to have suffered or been subjected to any harm. The applicants never suggested, in the Tribunal, that they could not relocate or live in Sabeto (and even if they had, the Tribunal found that they could live there without a real risk of serious or significant harm). Their case was that nowhere in Fiji, including Sabeto, was safe for them. The Tribunal rejected that case and found that there was no real chance or risk that the applicants would suffer significant or serious harm anywhere in Fiji. It found that conditions elsewhere in Fiji did not suggest that the applicants would be at risk of substantial or significant harm for the purposes of engaging Australia’s protection obligations.

42    In those circumstances her Honour’s assessment, at a general level, that the applicants had poor prospects of success on their substantive claim (even had it expressly included the relocation point, which it did not) does not disclose any jurisdictional or other error by her Honour: cf. M211 of 2003 212 ALR 528 [27], 529 [36].

Did the trial judge apply the wrong test under s 477(2)?

43    The Federal Circuit Court is, of course, a Court with a very heavy caseload including in relation to matters under the Act. One of its objects, set out in s 3 of the Federal Circuit Court of Australia Act 1999 (Cth), includes enabling it to operate as informally as possible in the exercise of judicial power and to use streamlined procedures.

44    Her Honour had held a directions hearing on 20 September 2017 in which she had given the applicants information about the processes of the Court and where they could seek advice. While it may or may not have been reasonable for them to have refrained from seeking legal advice before that directions hearing, once it had occurred, they knew that the matter had been fixed for hearing on 27 October 2017. Yet perhaps because of the wife’s ill health, they did not immediately take steps to seek legal advice. The application for an adjournment was made to her Honour effectively without any evidence to support it. The applicants sought yet a further postponement of the Court hearing their substantive application for an extension of time without them identifying any substantive ground of review or other reason to justify further delay.

45    In my opinion, on the material before her Honour, it was open to her to refuse the adjournment. On the face of the Tribunal’s decision, her Honour assessed that there did not appear to be much in the applicants’ prospects of success, and there was no substantive basis to support the grant of an adjournment.

46    Many applicants seeking relief from decisions under the Migration Act apply for adjournments when their matter comes for hearing before both the Federal Circuit Court and this Court on the basis that they have not been able to obtain legal advice. It is understandable that they wish to obtain legal advice, because the decision to refuse the grant of a visa, against which they seek relief, can affect their lives profoundly. They are dealing with a legal system usually in a language that is not their first and involving technical matters of law that to most people would be incomprehensible. But, if in those circumstances, an applicant, in the position of the present applicants, who has been informed by the Court over five weeks before the hearing of where to seek legal advice, then applies only later at that hearing for an adjournment in which to have further time to seek that advice, in the ordinary course, there will not be any occasion for granting such an adjournment.

47    An appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment. It will do so if the refusal would have resulted in the denial of justice to an applicant and an adjournment would not have resulted in any injustice to any other party: Maxwell v Keun [1928] 1 KB 645 at 650 per Lord Hanworth MR, 657 per Atkin LJ, 658 per Lawrence LJ, applied in Sali v SPC Limited (1993) 116 ALR 625 at 628-629 per Brennan, Deane and McHugh JJ. Brennan, Deane and McHugh JJ held (116 ALR at 629):

In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. As Deane J pointed out in Squire v Rogers [(1979) 27 ALR 330 at 337] this “may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing”. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources. (emphasis added)

48    In Bloch v Bloch (1981) 180 CLR 390 at 395-396, Wilson J, with whom Gibbs CJ, Murphy, Aickin and Brennan JJ agreed, also applied what Atkin LJ had said in Maxwell [1928] 1 KB at 653; see also Culleton v Balwyn Nominees Pty Ltd (2017) 343 ALR 632 at 642-643 [36]-[38] per Allsop CJ, Dowsett, Besanko JJ; Smits v Lillas & Loel Lawyers Pty Limited [2016] FCAFC 143 at [46]-[47] per Rares, Collier and Markovic JJ.

49    In my opinion, her Honour made no jurisdictional (or, were her decision relevantly appellable, any) error in her refusal to grant an adjournment.

50    The grant of a prerogative writ is a discretionary remedy: see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618 [28] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. Her Honour had jurisdiction to grant or refuse the extension of time. If she made an error in attributing responsibility for the delay to the applicants (rather than the Tribunal) having initiated the process under s 417, that was an error of fact, not a jurisdictional error. The trial judge had jurisdiction to decide the facts and that included deciding them correctly or incorrectly: cf. Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 per Latham CJ at 375, per Starke J at 385 and per Dixon J at 389-390 (with whom Evatt and McTiernan JJ agreed).

51    In other words, her Honour had power to decide the facts before her, in the exercise of the Federal Circuit Court’s jurisdiction under s 477, and that power included power to make an error of fact. Such an error could be corrected on appeal. However, this proceeding is not an appeal, but rather, is an application for an order in the nature of a writ of certiorari. I am of opinion that any error her Honour made was within jurisdiction: Craig v South Australia (1995) 184 CLR 163 at 186 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. Moreover, for the reasons I have given, no useful result would be obtained by granting a writ of certiorari.

Conclusion

52    Each of the four applications for prerogative relief must be dismissed. However, the order for costs should be limited. The four applicants effectively argued only one case. Accordingly, I will allow only one set of costs in respect of the four applications, on the basis of a half-day hearing.

Associate:

Dated:    13 April 2018