Federal Court of Australia

ACE21 v Minister for Home Affairs [2021] FCA 702

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed as incompetent.

2.    The Appellant pay the Respondents’ costs as taxed or agreed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed as incompetent.

2.    The Appellant pay the Respondents’ costs as taxed or agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

PERRAM J:

1    The Court has before it two related appeals which were heard together on 24 June 2021. The proceedings are NSD 599 of 2021 (‘ACE21’) and NSD 604 of 2021 (‘FJW20’).

ACE21

2    On 2 June 2021 Judge Driver in the Federal Circuit Court made this order in this matter (SYG52/2021):

1.    The application in a case filed on 31 May 2021 is dismissed, in so far as it sought a transfer of proceedings to the Federal Court of Australia.

3    Where the Federal Circuit Court refuses to transfer a proceeding to this Court, no appeal lies to this Court: Federal Circuit Court of Australia Act 1999 (Cth) s 39(6). On 23 June 2021 ACE21 filed a notice of appeal from the orders made on 2 June 2021. The only order made on that occasion was the order dismissing the application for a transfer of the proceeding to this Court. The effect of s 39(6) is that the appeal is therefore incompetent.

4    It is apparent that the real point sought to be agitated by ACE21 is an alleged failure by Judge Driver to deal with his interlocutory application for interim relief otherwise contained in the application in a case filed in the Federal Circuit Court on 31 May 2021. However, no order was made by Judge Driver in relation to that application other than in relation to the aspect of it which sought a transfer of the matter to this Court and I do not see how that could be dealt with in an appellate proceeding (as opposed to judicial review proceedings). I raised this several times with Mr Taylor who appeared for ACE21. The theory disclosed by the notice of appeal is that the Court will allow the appeal on the transfer decision, order the proceeding before Judge Driver be transferred to this Court and then, when it arrives, deal with the interlocutory application presently pending before Judge Driver. I do not think that ACE21’s desire to have his claims for interim relief resolved is necessarily procedurally closed to him in this Court at all but I do think that it has no prospects in the form that it has been presented. My efforts to impress this upon Mr Taylor were to no avail.

5    The order I will make is that the appeal be dismissed as incompetent. The Appellant must pay the costs of the Respondents as taxed or agreed. It follows that, as the appeal is incompetent, the Court has no power to grant interim relief in respect of it. The effect of the order dismissing the appeal on competence grounds determines the outcome of the claims for interim relief as well.

FJW20

6    On 8 June 2021 Judge Driver made these orders in this proceeding (SYG3103/2020):

1.    The Court notes that the matter is listed in a callover on 20 August 2021.

2.    The Application in a Case filed on 19 January 2021 is dismissed, insofar as it seeks transfer to the Federal Court.

7    On 23 June 2021 FJW20 filed a notice of appeal from those orders. As in ACE21 this appeal is incompetent insofar as it concerns the refusal in Order 2 to transfer the proceeding to this Court. The effect of Order 1 is that the application in a case filed on 19 January 2021 has been adjourned to a callover on 20 August 2021. No appeal to this Court lies from an order adjourning a proceeding to a different day: Federal Court of Australia Act 1976 (Cth) s 24(1AA)(b)(ii). Hence no appeal lies from Order 1 to this Court. Consequently, the appeal is incompetent.

8    Again the point which FJW20 seeks to make is that his claim to interim relief has been not dealt with by the Federal Circuit Court in a timely fashion. I was told that FJW20 is presently refusing to eat or take fluids in an effort to persuade the Respondents to remove him to Papua New Guinea. As I understand it, the interim relief sought in effect will seek to compel the Respondents to remove him as he seeks. In finding that the appeals in both these cases are incompetent, I would not wish to be understood as saying anything about the likely disposition of proceedings against the Federal Circuit Court for mandamus to compel it to deal with the interlocutory applications presently pending before it. However, as I said to Mr Taylor, it is not the Court’s role to do his job for him.

9    Just before I was to deliver judgment, Mr Taylor drew to my attention Wigney J’s decision in BHL19 v Commonwealth of Australia [2019] FCA 462 (‘BHL19’). I accept that Wigney J’s decision was an example where the Court was able to grant interim relief pending the determination of an application for habeas corpus. I accept that it demonstrates that if Judge Driver were to determine the interlocutory applications for relief which are pending before him then it would be at least legally possible for him to grant the relief which is sought. However, BHL19 does not resolve the procedural problem which both FJW20 and ACE21 have which is that the originating processes by which they have commenced their proceedings in this Court are incompetent since they seek to appeal from orders from which there is no appeal. Consequently, BHL19 does not assist them.

10    The appeal is therefore dismissed as incompetent. The Appellant must pay the Respondents costs as taxed or agreed.

Associate:

Dated:    24 June 2021