Federal Court of Australia

DHH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Appeal Hearing) [2021] FCA 1501

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant’s application to file an amended Notice of Appeal is refused.

2.    The appeal is dismissed.

3.    The Appellant pay the First Respondent’s 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    This is an application by the Appellant to amend his notice of appeal. The application was made orally from the bar table at the outset of the appeal. The proposed form of the amended notice of appeal is a document entitled ‘Draft Notice of Appeal from the Federal Circuit Court’. Although perhaps not expressed with perfect clarity, it sufficiently – for present purposes – seeks relief that the appeal be allowed, the decision of the Federal Circuit Court be set aside and the matter be remitted for further determination. It advances as a ground of appeal that the judge in the court below erred in dismissing the application which was before him as an abuse of process.

2    The proposed draft amended notice of appeal suffers from some other infelicities of articulation but they are not presently of any moment. The background to the application made this morning is substantial and consists of three chapters. The first chapter concerns what took place in the Federal Circuit Court in this proceeding. I have previously explained that in some detail in the reasons for judgment I gave in granting leave to appeal: DHH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 891 at [11]-[31]. It is not necessary to repeat those matters.

3    What can be noted is that the Appellant’s proceeding in the Federal Circuit Court had been initially dismissed by operation of some self-executing orders. Subsequently, an application was made to vacate the operation of those self-executing orders. That application came before Judge Driver who dismissed it by concluding, inter alia, that the making of the application constituted an abuse of process. An application for leave to appeal was then filed with this Court, which then commenced the second chapter in this history. That application came before me on 14 July 2021 and on 4 August 2021 I granted leave to appeal.

4    I did so on the basis that I thought there was arguably an erroneous treatment by the learned primary judge of the question of whether there had been an abuse of process. At the time I delivered those reasons I had some cause to consider the adequacy of the draft notice of appeal, which had by then been propounded by the Appellant. The draft notice of appeal unfortunately, at that time, did not direct itself correctly to the establishment of appellable error by the Federal Circuit Court but instead, in a way which is not entirely unfamiliar, simply asserted error by the Immigration Assessment Authority. It is clear that the drafter misunderstood the jurisdiction of this Court in doing so.

5    In any event, it was clear that the proposed draft notice of appeal accompanying the application for leave to appeal was inadequate. At [36] I pointed out this problem and subsequently, on 4 August 2021, made orders granting the Appellant leave to appeal and requiring the Appellant to file a proper notice of appeal by 18 August 2021.

6    The third chapter of what has happened then begins with the filing on 18 August 2021, in compliance with the order I had made, of the Appellant’s notice of appeal. Regrettably, the remarks which I had made about the form of the draft notice of appeal at [36] of my reasons were not heeded and that was so despite the fact that the second order I made on 4 August was that the Appellant’s solicitor and his junior counsel be provided with a copy of the reasons I had provided. It was accepted this morning – that is to say Friday 26 November 2021 – at the hearing of the appeal that the draft notice of appeal which was filed was not, to use my expression, fit for purpose. A long silence then fell over the matter, which came to an end only on 10 November 2021 when the Appellant’s lawyers wrote to the Minister’s solicitors indicating that they would be unable to comply with a deadline which was by then rapidly approaching.

7    After the granting of leave to appeal, procedural directions had been made on 13 September 2021 that the Appellant file any submissions within 10 days of the hearing. On 10 November 2021, the Appellant’s lawyers indicated that they would not be able to comply with that timetable. In the events which transpired, the Appellant’s lawyers did not provide their written submissions until 18 November 2021. At the time that those submissions were provided, they were accompanied by what I have referred to as the proposed amended notice of appeal. Subsequently, the Minister’s submissions were served, and the matter was called on for hearing before me this morning.

8    The question which arises is whether the Appellant should have leave to file his proposed amended notice of appeal. If that leave is not granted, it follows from the fact that the parties accept that the current notice of appeal is not adequate that the appeal will be dismissed. Thus, the determination of this apparently minor interlocutory matter is, in fact, largely dispositive of the proceeding. The principles governing the amending of notices of appeal are reasonably well established. It is necessary for a party who propounds an amended notice of appeal to show that the amendment is of sufficient merit to warrant a grant of leave, that whatever prejudice has been caused to the respondent by the grant of leave is not so much as to defeat the grant, and there must be an explanation for why the indulgence of an amendment is now sought.

9    The importance of the matter of explanation has been emphasised on a number of occasions, perhaps most notably in recent years by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 at [30]. It seems to me that I should refuse leave to amend the notice of appeal in the way foreshadowed. Effectively there are two reasons for this. First, the Appellant has not really explained what the argument in favour of his appeal is. To make sense of that statement, it is necessary to give a little bit of context about the application for leave to appeal. As I said in my reasons of 4 August 2021, I came to the conclusion that it was arguable that the learned primary judge had erred in concluding that the application which was made to him had been an abuse of process. In my reasons I gave consideration to that issue between [32] and [34]:

32.     Had Mr Siddque and Mr Bodisco filed a fresh application in a case or moved from the bar table for the same orders this process of reasoning would not have been available. The difficulty identified by the primary judge with the application was that it was a ‘fabrication put in the name of the solicitors’: [8]. No doubt it is correct to say it was a fabrication in that sense. But the picture is made more complex when that same solicitor then sought to proceed on it. It was clear that the Applicant wished to proceed on it and Mr Siddque was happy to do so too. Whilst I agree with the primary judge that it was originally an abuse of process I have some difficulty seeing that it remained so once Mr Siddque made it his own. The main problem was that the application in a case had been prepared (falsely) without Mr Siddque’s authority. But it is well established that one person may subsequently ratify the authority of another to do something on their behalf. In particular, with respect to the authority required to file legal proceedings on behalf of another, in Danish Mercantile Co Ltd v Beaumont [1951] Ch 680, Jenkins LJ said at 687-688, with Hodson LJ agreeing at 689:

I think that the true position is simply that a solicitor who starts proceedings in the name of a company without verifying whether he has proper authority so to do, or under an erroneous assumption as to the authority, does so at his own peril, and that, so long as the matter rests there, the action is not properly constituted. In that sense, it is a nullity and can be stayed at any time, provided that the aggrieved defendant does not unduly delay his application; but it is open at any time to the purported plaintiff to ratify the act of the solicitor who started the action to adopt the proceedings, to approve all that has been done in the past, and to instruct the solicitor to continue the action. When that has been done, then, in accordance with the ordinary law of principal and agent and in accordance with the ordinary doctrine of ratification, in my view, the defect in the proceedings as originally constituted is cured; and it is no longer open to the defendant to object on the ground that the proceedings thus ratified and adopted were, in the first instance, brought without proper authority.

33.    This statement of Jenkins LJ is regarded as expressing a well-established principle of law: Ox Operations Pty Ltd v Land Mark Property Developments (Vic) Pty Ltd (in liq) [2007] FCA 1221 at [2] per Finkelstein J; Multitecfbm (Asia Pacific) Pty Ltd v Seong Myeon (Chris) Han [2008] NSWSC 1339 at [29] per Sackville AJ; Dal Pont G E, Law of Agency (4th ed, LexisNexis Butterworths, 2020) [5.51] p 133. However it does not directly govern the situation that presented itself before the primary judge. The application in a case had been filed in the name of the Applicant’s lawyer, Mr Siddque, without his authority but bearing his name. It is possible therefore that the application should be regarded not as an act purportedly done as agent for Mr Siddque, but as a forgery of Mr Siddque’s own actions, such that it was incapable of ratification: see Watts P, Bowstead & Reynolds on Agency (22nd ed, Sweet & Maxwell, 2021) [2-047].

34.     It is not necessary at this stage to resolve any tension created by the application of these principles to the case at hand. What is clear is that it is reasonably arguable that the primary judge erred in his characterisation of the application as an abuse of process. Mr Siddque sought to make the application his own but could have instructed Mr Bodisco to move the same application orally from the bar table or could have filed a fresh application in precisely the same terms. The approach Mr Siddque took appears to have had the virtue of being the most straightforward and cost efficient way of proceeding and the one least likely to involve further procedural irregularities such as the need to shorten the time for any fresh application to be made returnable.

10    It will be seen from [33] that I apprehended there was a tension between the principles of law governing ratification and perhaps other principles of law applying in a case where a document was forged. It was not necessary for me on the occasion of the grant of leave to determine what the resolution of that tension was. It was sufficient enough to conclude that the point was arguable. I did not determine in the reasons for judgment that the point was correct and I did not attempt to resolve the tension identified at [34]. In the written submissions filed by the Appellant, on the central issue in the appeal, the Appellant said this at §3:

The appellant respectfully adopts the reasoning of Perram J in the leave application at [32] to [36] of DHH17 v MICMSMA [2021] FCA 891 that the Federal Circuit Court was in error in dismissing the Appellant’s application in a case for abuse of process.

11    The submission went no further than that. Ms Xiao, who appeared for the Minister, correctly submitted, in my opinion, that the Appellant had not really advanced any argument as to why there was not an abuse of process, and that merely to repeat my reasoning as to why it was arguable that there was an error in that regard was not to advance a substantive argument. Alternatively, she submitted that if anything else was now said about the topic, she would be prejudiced because her submissions had not responded to the Appellant’s submissions on the abuse of process point because, as she submitted, the Appellant had not made any.

12    I accept Ms Xiao’s submissions. The Appellant has brought a case in this Court which is substantively concerned with extricating him from difficulties which have arisen from his procedural defaults in the Federal Circuit Court. This Court, in the exercise of its appellate jurisdiction, has granted leave to appeal to allow investigation of the issue and determination of whether that problem can be fixed up. But in the face of that, the invitation has not been accepted, and substantive submissions have not been made. At some point the end of the rope has to be reached. I do not accept, therefore, that anything has been put before the Court sufficient to explain what the Appellant’s case on the abuse of process point is.

13    Turning then to the question of the explanation for the delay in seeking an amendment to the notice of appeal, no affidavit of explanation was proffered. Of course I accept, as was pointed out in Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; 187 FCR 261 at [51] per Keane CJ, Gilmour and Logan JJ, that there is no one size fits all approach to questions of this kind. I accept that it is not always the case that an affidavit has to be filed, as the Full Court explained in Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2; 332 ALR 199 at [154] per Gilmour, Perram and Beach JJ. Mr Blount, from the bar table, explained to me the chronology of events which had occurred. Largely I have set that out above. It consists of the filing of the notice of appeal on 18 August 2021, and runs through a series of events through to 18 November 2021, when the proposed amended notice of appeal was served.

14    Mr Blount, I think understandably, submitted that I ought to infer that the reason that the draft notice of appeal had been prepared so late was a matter of instructions. I can only assume that is correct. That is, I accept, it is a form of explanation. However, I do not think it is a satisfactory explanation. It leaves unanswered why those instructions were forthcoming at the time that they were. It leaves unanswered what the relationship between the Appellant and his solicitors and his counsel was, and it leaves me in an insufficiently clear situation to be able to weigh up the competing interests of the parties.

15    That is, after all, the point of the explanation. It is not a process of confession and forgiveness; rather the explanation allows the Court to understand where the justice of the situation lies. When a party does not give a complete explanation of the reasons why they find themselves in the position of seeking an indulgence, they leave the Court in the position that it is unable to weigh, in the exercise of a discretionary judgment, the various matters which need to be weighed. So I do not think, in relation to the timing of the proposed amended notice of appeal, that a sufficient explanation has been given to allow me to embark upon a proper consideration of the discretionary matters which arise.

16    I would add this too. There is also no explanation for why the initial notice of appeal which was filed was filed in the form that it was. This is perhaps particularly noteworthy in circumstances where the Court had gone out of its way in [36] of its reasons to indicate the problem with the draft notice of appeal, and had directed a copy of the judgment to be sent both to the Appellant’s solicitor and to his counsel, precisely to avoid the problem which now has arisen. Again, there was no explanation in relation to that.

17    I will just touch briefly on the topic of prejudice to the Minister. I would accept Ms Xiao’s submission that if the Appellant had sought to flesh out the abuse of process argument contained in his written submissions – that is to say no argument at all – by making some additional submissions, then she would have been prejudiced by having to deal with those submissions on the run. On the other hand, I do not think the Minister does suffer any prejudice if the Appellant is confined to §3 of his written submissions but as I have explained already, that is because §3 of the submissions does not advance an argument which the Minister was required to meet.

18    Taking into account all of those matters, I do not think it would be a proper exercise of the Court’s discretion to permit the proposed amended notice of appeal to be filed, and I formally refuse the application. The consequence of the amendment application is that the notice of appeal which is on the Court file does not disclose a viable ground of appeal (as was accepted on both sides). Consequently, the appeal must be dismissed with costs.

Associate:

Dated:    1 December 2021