FEDERAL COURT OF AUSTRALIA

CLU16 v Minister for Home Affairs [2019] FCA 147

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The applicant pay the first respondent’s costs fixed in the sum of $1,756.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    The applicant seeks an extension of time to file a notice of appeal from the orders of the Federal Circuit Court made on 29 June 2018 refusing him Constitutional writ relief in respect of the decision of the Administrative Appeals Tribunal made on 12 August 2016 to affirm the Minister’s delegate’s decision not to grant the applicant a protection visa: CLU16 v Minister for Immigration [2018] FCCA 1944. Her Honour’s written reasons record that she “delivered” those reasons on 20 July 2018, that is on the last day on which the applicant could file a notice of appeal as of right under r 36.03(a)(i) of the Federal Court Rules 2011.

2    When the matter was called outside the Court this afternoon, the applicant did not appear and he did not answer his mobile telephone when the Court sought to make contact with him during the course of the hearing. The Minister sought that the application for an extension of time be dismissed for failure of the applicant to appear and, in the circumstances, that is appropriate, although, as explained below, I have some concerns about why her Honour made final orders well before giving reasons for doing so.

Background

3    The applicant filed the application for an extension of time on 13 August 2018. In his affidavit in support of the application for an extension of time made on 13 August 2018, the applicant asserted that he was bringing the application out of time

because of several factors, such as my personal issues spanning from my health and my families [sic] dire situation in Pakistan, my financial issues as I am severely in debt because I have taken out a loan to fund my mother’s significant healthcare costs as she developed a brain tumour in the past few months and needed emergency surgery, my poor English, and the fact that reasons were only handed down on 20 July 2018, which I received on or about Monday 30 July 2018. (emphasis added)

The applicant asserted that due to “my trying circumstances and my feeling of hopelessness, my friends have agreed to assist me in bringing this application and to find legal representation to contest my matters at the Federal Court”.

4    The solicitor for the Minister was not able to inform me of the circumstances in which her Honour came to publish reasons on 20 July 2018 after making final orders on 29 June 2018. Nor do her Honour’s reasons contain any explanation of why it was appropriate to make final orders on 29 June 2018 but to deliver reasons later.

The informal application for an adjournment

5    The National Operations Team of the Court notified the parties, including the applicant, by email on 3 January 2019 that the application had been fixed for hearing before me today. On 25 January 2019, the Minister sent by email to the applicant a copy of his submissions and reminded the applicant of the hearing date today.

6    The applicant has not filed any submissions or other material in his application since commencing it. But in the afternoon of Friday 1 February 2019, he and his doctor, Bronwyn Wells, separately sent material to the Minister’s solicitors and the Registry respectively. In his email to the Minister’s solicitors, which the Minister copied to my associate, the applicant said that he had been advised by his doctor not to attend Court today due to his mental health issues and frailty. He said that he had attached evidence and that his doctor had also contacted the Court. He said that he would request an adjournment pending the improvement of his health.

7    The medical certificate of Dr Wells, dated 1 February 2019, that the applicant attached to his email to the Minister’s solicitors, certified that the applicant “has a medical condition and will be unfit for work/study from 01/02/2019 to 05/02/2019 inclusive”.

8    On 1 February 2019, Dr Wells also wrote a letter, addressed to the Court, saying, “This is to let you know that [the applicant] is unwell and will not be able to attend court on Monday [sic]. Sorry for the inconvenience caused”. Dr Wells invited the Court to feel free to contact her by telephone or email should “the above need clarification”.

9    The Minister’s solicitors responded to the applicant on 1 February 2019 that they were seeking instructions as to whether the Minister would or would not consent to an adjournment and advised the applicant that if he wished to seek the adjournment, he would need to email the Court directly. Early on 4 February 2019, the Minister’s solicitors emailed the applicant and my associate saying that he opposed an adjournment.

10    Later this morning my associate emailed the parties, saying that I had not granted an adjournment and the matter remained in the list today.

Consideration

11    Applications for an adjournment based on medical evidence of the insubstantive kind above are inadequate to justify the grant of an adjournment. In Ahmad v Minister for Immigration and Border Protection [2018] FCAFC 199, Bromwich J said, with the agreement of Davies J and myself, that the paucity of information in a medical certificate in support of an application such as this, its lateness and the lack of any merit in the grounds of appeal, were factors to be considered. His Honour said that, ordinarily, it was best to avoid consideration on the merits of the substantive appeal in relation to the grant or refusal of an adjournment, as opposed to an application for an extension of time, in which the merits of the proposed appeal may be relevant.

12    Bromwich J cited what he had said in Gulati v Minister for Immigration and Border Protection [2017] FCA 255 at [14] in relation to an adjournment application received prior to the hearing and supported by a somewhat perfunctory medical certificate, saying:

The third factor reinforcing my view that this is an insufficient and unacceptable means by which a scheduled hearing before this Court should be adjourned arises from clear authority from the New South Wales Court of Appeal in similar circumstances in AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [3]–[6]; followed in Kennedy v Secretary, Department of Industry (No 3) [2016] FCAFC 149 at [34(3)]. AHB indicates that, in considering an application to adjourn the hearing of an appeal, an appeal court will not ordinarily act on a “formulaic document” but rather will usually require an explanation on oath from the medical practitioner of the illness and the reasons for the applicant’s inability to attend Court. That is especially so when a matter was fixed for hearing some considerable time ago and its presence in the list has prevented other matters being listed for hearing. (emphasis added)

13    Here, the application for an adjournment came substantially late on the Friday afternoon before the hearing fixed at 2:15pm today, Monday 4 February 2019. The medical certificate which Dr Wells provided to the applicant simply asserted that he would be unfit for work or study today (not Court) because of “a medical condition”, without specifying what the condition was; and her letter to the Court really went no further, simply asserting that he was unwell and would not be able to attend Court today. While Dr Wells invited the Court to contact her, that is not the role of the Court.

14    This application had been fixed for hearing today a month ago. The applicant has made no attempt to comply with his obligations set out in the Registrar’s directions of 7 September 2018 to file and serve a draft notice of appeal within 10 business days of those directions, or to file and serve any written outline of submissions on which he sought to rely in support of his application for an extension of time no later than 10 business days before today. Indeed, as I have noted, the applicant has filed nothing apart from his initial application and affidavit in support.

The proceedings before the trial judge

15    The Federal Circuit Court of Australia Act 1999 (Cth) provides that the jurisdiction of the Federal Circuit Court must be exercised in open court (s 13(2)) and that, in any proceedings before it, the Federal Circuit Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted (s 42). In addition, s 75(2) contemplates that if a judge of the Federal Circuit Court reserves his or her reasons for a decision in a proceeding and the judge who heard the proceeding later prepares reasons, but is not available to publish them, another judge can do so on his or her behalf.

16    I explained the purpose of the law’s requirement that judges give reasons for their exercise of judicial power in Koutalis v Pollett (2015) 235 FCR 370 at 377-378 [36]-[37] as follows:

In Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72 at [26], Gaudron, Gummow, Hayne and Callinan JJ referred to the need to give reasons for decisions as being an ordinary rule. There, they said that reasons for refusing leave need not be extensive, and that in appropriate cases, little more might be required than perhaps a very short statement of the chief conclusions that the judge refusing leave had reached. They said, critically:

The disappointed applicant (and any court asked to review the refusal) must, however, be able to know from the reasons given by the primary judge why the judge reached the decision to refuse leave. (emphasis added)

More recently, in Wainohu v State of New South Wales (2011) 243 CLR 181 at [54]-[56] French CJ and Kiefel J said that the requirement to give reasons for judgment was an ordinary incident of the judicial process of general application for all persons exercising judicial functions. The importance of giving reasons for judicial decisions was also emphasised by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 at [24], where their Honours said that after the general facility of appeal was introduced and the number of civil jury trials reduced, there had been an:

increase in trials by judge alone at the end of which the judge, who is subject to appeal, is obliged to give reasons for the decision (Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666-667 citing Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257-258, 268-273, 277 to 281). Such reasons are, at once, necessitated by the right of appeal and enhance its utility. (emphasis added)

17    The Full Court of this Court has held that a judge of the Federal Circuit Court can reserve his or her reasons after making final orders: Richmond v BMW Australia Finance Ltd (No 2) (2009) 174 FCR 232 at 234 [10]-[11], per Black CJ with whom Jacobson J at 235 [18] and Rares J at 235 [19] agreed. In that case, the judge had made a sequestration order on the last day of the 24 month period before which a creditor’s petition would have expired and then reserved his reasons. The judge delivered those reasons 21 days later. In those circumstances, the Full Court held that the 21 day period between the making of the final order and the delivery of his Honour’s reserved reasons was not inappropriate (at 234 [13], 235-236 [23]), no doubt because his Honour had to make a final order before the petition would expire the next day and prepared and delivered his reasons relatively soon afterwards.

18    Ordinarily, when at the conclusion of a hearing or after making an order, a judge announces that he or she reserves judgment (i.e. the making of orders and the giving of reasons) or his or her reasons, or says some words to that effect, the consequence is that, although the judge has not made an order for adjournment, the proceeding will remain on foot: Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554 at 569-570 [64]-[67], per Spender ACJ, Dowsett and Collier JJ; Li v Wu [2017] FCA 500 at [55]-[56], per Rares J. However, if the judge also makes an order that the proceedings stand over, or is adjourned, to a definite date, then the order fixing the new date is an order, but there is no order reserving the reasons. After all, the judge cannot make an order binding himself or herself to give reasons. Ordinarily, the giving of reasons for a final (and sometimes for an interlocutory) order is a judicial duty. However, if a judge of an inferior court does not say, after making a final or other order, that he or she reserves the reasons for it (where, as in the case of the Federal Circuit Court, there is power to do so in s 75(2)), ordinarily he or she becomes functus officio and cannot later give reasons: Palmer v Clarke (1989) 19 NSWLR 158.

19    In this matter, her Honour’s orders made on 29 June 2018 were entered on that day. They noted that the applicant had appeared in person, the Minister had appeared by his solicitor and recorded the Court’s orders that the application was dismissed and the applicant pay the Minister’s costs, fixed in the sum of $5,500. The orders did not record that her Honour had reserved her reasons.

20    Her Honour’s reasons commenced with the following paragraph:

1.    These reasons support the making of orders on 29 June 2018.

21    The reasons contained no explanation as to how they came to be given and, moreover, they did not contain any indication of whether they reflected her Honour’s actual state of reasoning on the day she made the orders, as opposed to being reasons that she conceived later.

22    The Tribunal had given substantive reasons for its decision but, when her Honour dismissed the application on 29 June 2018, she gave no reasons for her decision on which the applicant might seek to base an appeal. The applicant had 21 days in which to file an appeal from the final orders made on 29 June 2018 pursuant to r 36.03(a)(i). In the event, when her Honour gave reasons that she said “supported” her final orders earlier, she did so 21 days after those orders had effect. It would have been almost impossible, even for skilled counsel, to have prepared and filed a notice of appeal as of right on 20 July 2018, being the day the reasons are dated.

23    There was no apparent urgency or other necessity requiring her Honour to determine the matter on 29 June 2018, in advance of giving reasons. Certainly, the reasons do not explain why it was appropriate or necessary to make final orders before giving any reasons to “support” those orders.

24    On the incomplete material before me of what occurred on 29 June 2018, there does not appear to be any basis on which it was appropriate for her Honour to deliver reasons for her final orders at a later time, when effectively the applicant could not file an appeal as of right based on any alleged errors in whatever may have been her Honour’s reasons for making the orders. By making final orders without any apparent necessity to do so before giving any reasons beforehand contemporaneously, her Honour appears to have created an unfair situation for the applicant who did not know what her reasons were and could not formulate a meaningful notice of appeal in their absence. It may well be that, if further evidence or material were before me, her Honour’s jurisdiction or power to proceed as she did would be shown either to have been established or absent. However, on the material before me, it is not possible to determine that and it may be that it was appropriate for her Honour to have proceeded as she did. But in an unexceptional case, like this presently appears to be, the final orders should have been made only when her Honour was ready to give reasons for making those orders.

25    While I am concerned about the unusual way in which her Honour proceeded, which may have provided a ground of appeal or for the extension of time, there is insufficient material before me, including evidence, as to why her Honour made final orders on 29 June 2018 and reserved her reasons. However, an inappropriately presented application for an adjournment, such as this, is not an appropriate vehicle in which to examine those issues.

Conclusion

26    The applicant has failed to attend a hearing relating to his application in the Court’s appellate jurisdiction. Section 25(2B)(bb)(ii), read with ss 25(2BA) and (2)(b) of the Federal Court of Australia Act 1976 (Cth), authorises the Court to order that the application for an extension of time be dismissed. In all of the circumstances, that is the appropriate order to make. There is no proper or sufficient basis on which to grant an adjournment and there is no proper or sufficient explanation as to why the applicant has not appeared to ask for one.

27    For the reasons above, I order that the application for an extension of time be dismissed with costs fixed in the sum of $1,756.

Associate:

Dated:    15 February 2019