Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289 (20 February 2004)

MIGRATION – PREROGATIVE WRIT RELIEF - whether informal discovery should be ordered - whether arguable case disclosed without informal discovery.

Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors [2002] HCA 30; (2002) 190 ALR 601 cited
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

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BETWEEN:	APPLICANT S1328 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1343 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1344 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1380 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1385 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1386 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1387 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1388 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1389 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1390 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1391 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS S1393 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1394 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1395 OF 2003 APPLICANT
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AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT

BETWEEN:	APPLICANT S1397 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1398 OF 2003 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT

BETWEEN:	APPLICANTS 1399 OF 2003 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT

BETWEEN:	APPLICANT S1400 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS S1401 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1402 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1404 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1405 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS S1406 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1408 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1409 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1410 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1412 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1414 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1415 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1416 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1418 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1419 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1420 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1421 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1422 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS S1423 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1424 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1425 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1426 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS S1427 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1428 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1429 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1430 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS S1431 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1432 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS S1433 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS S1434 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1435 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1436 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1437 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1438 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1439 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1440 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1441 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1442 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1443 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS S1444 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1446 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1447 OF 2003 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT

BETWEEN:	APPLICANTS S1448 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1449 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1450 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1451 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS S1452 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1453 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1455 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1456 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1457 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1458 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1459 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1460 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1461 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS S1462 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1463 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1464 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS S1465 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1466 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1467 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS S1468 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1669 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS S1470 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS S1471 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS S1472 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS S1473 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1478 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1482 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1484 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS 1486 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1487 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1488 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1489 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1490 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1491 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1492 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS S1493 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1496 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1499 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1500 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1502 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1504 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1505 OF 2003 APPLICANT
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BETWEEN:	APPLICANT 1516 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1522 OF 2003 APPLICANT
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BETWEEN:	APPLICANTS S1531 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1680 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1682 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1683 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1684 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1685 OF 2003 APPLICANT
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BETWEEN:	APPLICANT S1686 OF 2003 APPLICANT
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JUDGE:	EMMETT J
DATE:	20 FEBRUARY 2004
PLACE:	SYDNEY

1 I have this matter before me for directions, together with 707 other proceedings remitted to this Court by the High Court of Australia. All of the proceedings were remitted pursuant to orders made by Gaudron J on 25 November 2002. The applicants in the proceedings were, at one stage, named as represented parties in one or other of two proceedings that had been brought in the High Court. The two proceedings in the High Court were Muin v The Refugee Review Tribunal & Ors, S36 of 1999 and Nancy Lie v The Refugee Review Tribunal & Ors, S89 of 1999. Some of the applicants were joined as represented parties in the Muin proceeding. Others of the applicants were joined as representative parties in the Lie proceeding.

2 Each of the applicants is an unsuccessful applicant for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). In each case, a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’) refused the application for a protection visa and the applicant sought review of that decision by the Refugee Review Tribunal (‘the Tribunal’). In each case, the Tribunal affirmed the delegate’s decision.

3 The thrust of the claim made in the Muin proceeding is that, in the course of making its decision, the Tribunal read, considered and relied upon significant material that was in the possession of the Tribunal and that was, or may have been, adverse to the case of the plaintiff, Mr Muin. It is alleged that the adverse material was not brought to the attention of Mr Muin. While particulars of the adverse material in relation to Mr Muin were furnished with the Statement of Claim, no particulars were given of adverse material in relation to any of the other members of the represented class in the Muin proceeding.

4 In addition, it is alleged that, in the making of the delegate's decision in the Muin case, the delegate had regard to about thirty-one documents concerning Mr Muin and his claims. It is then said that the Tribunal wrote to Mr Muin concerning his review application stating that it had requested the Department of Immigration & Multicultural & Indigenous Affairs (‘the Department’) to forward a copy of those documents to the Tribunal. It is then alleged that, in fact, those documents were not forwarded to the Tribunal, yet the Tribunal said that it had looked at all the papers relating to Mr Muin’s application. It is alleged that the same set of circumstances applies to each of the other represented parties, but once again no particulars were furnished in the Statement of Claim concerning those other parties.

5 Similar claims are made in the proceedings brought by Ms Lie to the effect that the Tribunal represented to her that it would have regard to documents that had been considered by the Minister’s delegate. While particulars were furnished in relation to Ms Lie’s case, no particulars have been furnished in relation to the other represented parties.

6 There was a hearing by a Full Court of the High Court of the claims by Mr Muin and Ms Lie on the basis of agreed facts (see Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors [2002] HCA 30; (2002) 190 ALR 601). The agreed facts included the fact that the relevant plaintiff was under a belief that the Tribunal had been sent, and considered, the documents that had been considered by the delegate. The High Court concluded that certain letters written by the Tribunal to the plaintiffs in those cases were capable of misleading a reasonable person. The High Court made clear, in its reasons, that it was dealing with the two cases before it on the basis of the agreed facts. Thus, the High Court decided the cases on the agreed basis that such letters did, in fact, induce a belief on the part of the plaintiffs involved.

7 The High Court held that, in light of the circumstances as agreed, there was a denial of procedural fairness by the Tribunal and that such denial constituted a jurisdictional error. Accordingly, the decisions of the Tribunal were not to be taken to be decisions under the Act and, therefore, were not privative clause decisions within the meaning of s 474 of the Act.

8 Insofar as any principle of law was established by the decisions in those cases, that principle, of course, would be binding on this Court. However, neither of the proceedings before the High Court was concerned with any of the represented parties. Indeed, there was nothing in the pleadings in relation to the represented parties that was capable of supporting any claim to relief by them.

9 After several directions hearings, Gaudron J made orders in the proceedings on 25 November 2002 that, in addition to the plaintiff, leave be granted to any of the persons named in the schedule to the Statement of Claim in each proceeding, to file an application in the High Court seeking an order nisi in relation to the respective decision of the Tribunal. Any such application was to be filed on or before 1 June 2003. Her Honour ordered that, upon the filing of such an application, the name of the applicant in that application be deleted from the schedule of persons annexed to the Statement of Claim in the proceeding. Her Honour also ordered that, subject to Order 6, which I shall mention in a moment, and in the absence of any further order of the High Court, the proceedings stand dismissed from midnight on 30 May 2003.

10 Her Honour then ordered, pursuant to s 44 of the Judiciary Act 1903 (Cth), that any application filed pursuant to that order be remitted instanter to the Federal Court of Australia in accordance with the usual terms of remitter. What her Honour had in mind by the usual terms of remitter is not entirely clear. Generally, the High Court when remitting matters, orders that:

That order is explained by an exchange that took place between her Honour and counsel for the plaintiffs in the course of the directions hearing on 25 November 2002. The exchange was relevantly as follows:

12 In fact, McHugh J extended the time for making an application to 20 June 2003. That extension was granted on the basis of an affidavit of 7 May 2003 sworn by the solicitor for the applicants, Mr Adrian Joel. In the affidavit, Mr Joel referred to various groups and classes of applicants in respect of whom some difficulty might be experienced in getting proper instructions prior to 30 May 2003. In essence, Mr Joel said that if the date of dismissal of the proceeding in the High Court were extended from 30 May to 11 July 2003, he would be in a position to see a number of clients and to obtain proper instructions from them.

13 Mr Joel explained in his affidavit that he had made a number of attempts to obtain, from the Minister, copies of documents that he said were needed in order to give proper advice to his clients. For example, he said that he had spoken to Mr Andrus Markus, the Minister’s solicitor, on 21 February 2003. Parts of the conversation were to the following effect:

14 However, by mid-March 2003, Mr Joel realised that his office was unlikely to receive the country information and other documents that he had requested the Minister to furnish to him. By that time, his office had accepted instructions from about 900 clients, and, between late March and early April 2003, he assessed, as best he could, the prospects of success for each client. On 29 May 2003 approximately 650 applications for orders nisi were filed in the High Court, on 19 June 2003 a further 88 were filed and on 20 June a further 67 were filed. Each of those applications was, in accordance with the orders made by Gaudron J, remitted instanter to this Court. It is the bulk of those proceedings that are before me for directions today.

15 Counsel for the applicants in the proceedings, instructed by Mr Joel, has asked this Court to give a direction in each proceeding that the Minister serve on the applicant’s solicitors copies of the following documents:

16 Counsel for the applicants did not make any submission that any of the applicants has a right or an entitlement to be given those documents at this stage of the proceeding. The Minister made it clear to the Court, through her solicitor, that she does not propose to give those documents to the applicants’ solicitors, unless ordered to do so by the Court. Further, the Minister opposed the giving of any such direction by the Court.

17 The applications that were filed in May and June, which were remitted to this Court, are in virtually identical terms. In the present case, they consist of an affidavit by Mr Joel annexing copies of the reasons of the delegate and the reasons of the Tribunal in relation to the applicant, coupled with a draft order nisi. Mr Joel’s affidavits in each matter also state whether or not the particular applicant was a represented party in the Lie proceeding or the Muin proceeding.

18 The form of draft order nisi filed in each case is in the form of an order that the Tribunal and the Minister show cause why, in respect of the Tribunal’s decision, prerogative writ relief should not be granted, together with an order that there be an enlargement of time to permit the relevant applicant to commence proceedings for that relief. The ground for the relief are simply:

No further particulars are given in the affidavits or in the draft orders nisi of the alleged denial of procedural fairness.

19 Order 55 of the High Court Rules deals with prerogative writs. Under r 1, an application for prerogative writ relief may be made to the Court or a Justice ex parte. It is to be supported by an affidavit. The application must, in the first instance, be for an order calling on the proposed respondent to show cause why the writ or order should not be issued or made.

20 Thus, the rule assumes that a proceeding for prerogative writ relief will progress on the basis of affidavit evidence. The affidavit is the document upon which a Justice of the High Court would determine whether the applicant had established that there were arguable grounds for the granting of an order nisi. To obtain an order nisi, an applicant must show that he or she has at least an arguable case that the Tribunal, whose proceedings are called into question, has erred in a manner that would justify final relief by way of an order absolute. Therefore, the affidavit should set out concisely the factual background to the proceedings, the issues that arose between the parties before the Tribunal, the grounds of complaint in respect of the decision and the reasons why those grounds are sufficient to justify the granting of an order nisi.

21 Under O 55 there are time limits within which proceedings are to be brought. In the case of a claim for a writ of certiorari, the limit is six months from the making of a decision. In the case of a claim for a writ of mandamus, the period is two months from the date of the refusal to hear the matter.

22 It is patent that the material filed in this proceeding and each of the other similar proceedings does not demonstrate an arguable case for the grant of any relief. There is a bald assertion that the Tribunal failed to accord the applicant procedural fairness, coupled with the reference to either the Lie or the Muin proceeding in which generalised assertions are made, but in respect of which no particulars are furnished. It is fair to say that counsel for the applicants in all of the proceedings currently before the Court, did not contend that this Court would entertain an application for an order nisi on the basis of the material filed in any of the proceedings.

23 The order made by Gaudron J, to which I have referred, clearly contemplated the making of an application for an extension of time within which to file an application for an order nisi, supported by an affidavit that showed at least an arguable case. Indeed, as I have said, an extension was obtained so that the applicant would be in a position to file an application for an order nisi that showed an arguable case. In fact, none of the applications as lodged, exhibits an arguable case.

24 In an affidavit sworn on 5 February 2004, Mr Joel referred to a direction proposed by the Minister that the applicant file and serve a statement of relevant facts and law, setting particulars of the grounds relied upon for the relief claimed. Mr Joel said that, in order to comply with such a direction, his office would need to receive from the Minister the documents referred to in the direction proposed by him, to which I have already referred. That is the first step that would need to be taken before there could be compliance with a direction to file and serve a statement of relevant facts and law setting out particulars of the grounds relied upon for the relief claimed. Thus, unless the Minister is prepared to make available material, which she says she is not prepared to make available, and which it has not been suggested the applicant is entitled to have made available, the applicant is incapable of formulating grounds, upon which, he says entitles him to the relief claimed in the draft order nisi.

25 In effect, the applicant is seeking an indulgence, both from the Court and from the Minister, to enable him to formulate an arguable case for relief. In the absence of any submission as to why the Minister should be ordered by the Court to furnish documents to which the applicant has no entitlement, I do not consider it appropriate to make the direction sought by the applicant.

26 There is a matter that I have taken into account as a consideration, although it is not directly relevant to the question of whether the direction sought should be made. There are 708 matters presently before me for directions. Mr Joel has indicated in his affidavit of 5 February 2004 that he has been instructed to continue in respect of only 274 of those matters. He has been expressly instructed to discontinue in respect of 102 matters and was, at that time, in the process of filing approximately 48 notices of withdrawal. Apart from some thirty clients based in Victoria, he was in the process of preparing notices of withdrawal in relation to the balance. One inference that can be drawn, and I do not necessarily say that I draw it, is that there is simply no basis presently known to Mr Joel upon which most of the applicants would be entitled to any relief.

27 Counsel for the present applicant referred to three issues as being relevant to the question of whether I should give the direction sought. The first issue concerned possible prejudice to the applicant if an order nisi was refused at this stage. The second issue concerns the reasonableness of Mr Joel’s conduct in commencing this proceeding, and all the other proceedings before me, before having material available that demonstrated at least an arguable case. The third issue relates to the evidence that would be filed if the directions sought on behalf of the applicant were given.

28 The first possible prejudice adverted to was the suggestion that, the applicant, if an order nisi were refused at this stage, would be barred from relief by the principles of res judicata, issue estoppel or Anshun estoppel (see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589), even if he were subsequently able to demonstrate an arguable case. I do not see any substance in that expressed concern. An order refusing an order nisi is clearly an interlocutory order. As such it would not found any bar or estoppel against appropriate relief if grounds are established. Further, the Minister has assured the Court that there would be no submission made on behalf of the Minister, in relation to this application or any of the other applicants presently before me, that the refusal of an order nisi would constituted a bar to the commencement of a fresh proceeding claiming the same relief.

29 The second possible matter of prejudice was a concern that delay might be advanced as an answer to any claim for relief. The Minister has assured the Court that she will not make a submission in any future proceeding that there is no satisfactory explanation for the applicant’s delay, from the time when the applicant was joined as a representative party in the High Court, to the time of refusal of an order nisi. Any delay from the time of the making of a decision by the Tribunal and the joinder of the applicant in the High Court proceeding would still remain to be explained, so would any delay from the time of refusal of an order nisi until the commencement of any fresh proceeding.

30 I do not consider that there would be any prejudice to the applicant or to any of the other applicants by the refusal of an order nisi. No such refusal would stand in the way of successful prosecution of any subsequent application for prerogative writ relief if properly commenced and particularised.

31 Secondly, it was contended, on behalf of the applicant that, through his legal advisers, he had acted reasonably in not having filed material up to now that demonstrated an arguable case for relief. That, it seems to me, is not the correct question. Even if it were the case that the legal advisers acted reasonably, insofar as they commenced the proceeding on the basis of instructions given by the applicant (and I make no comment one way or the other), the question is whether there is any utility in allowing the proceeding to continue further, in circumstances where the applicant effectively acknowledges that he cannot succeed unless the Minister is directed to provide documents to which the applicant has no entitlement.

32 I express no view as to the propriety of the legal advisers in commencing this proceeding or any of the other proceedings presently before me without having adequate material to demonstrate at least an arguable case. However, it is clear that nothing has been advanced for nearly eighteen months, since the decisions of the High Court in Muin’s case and Lie’s case on 8 August 2002, as to why any of the applicants has an arguable case for the relief claimed in the draft orders nisi. The question is not whether the legal advisers have acted reasonably but whether the Court should now, in effect, direct discovery, either of an informal or formal nature, to enable the applicant to determine whether or not he has a case at all.

33 The third matter to which reference was made by counsel for the applicant is very much tied up with the matter that I have just dealt with, namely, the further evidence that would be filed if directions were given as sought. No doubt such evidence would be filed where it appeared, after the proposed informal discovery, that there was an arguable case for the relief claimed by the applicant. However, that is of no consequence if the Court does not direct informal discovery as sought.

34 I make no comment at all about the propriety or otherwise of the stance taken by the Minister in opposing the direction sought. It is, however, a well recognised principle that it is not open to a prospective claimant to commence a proceeding in order to utilise the procedures of the Court, such as discovery, notice to produce and subpoena, to find out whether the claimant has a case. The Federal Court Rules provide a process for obtaining discovery prior to commencement of proceeding. Order 15A was introduced for that purpose. In referring to that Order, I should not be taken to suggest that there would necessarily be any prospect of success, so far as the applicant is concerned, in making an application under Order 15A. Nor should I be taken to be suggesting that there is any reason why he might not succeed in such an application.

35 At the moment, I am not persuaded that there is any good reason why I should, at this stage of the proceeding, compel the Minister to furnish the documents sought in order for the applicant to tell the Court and the Minister what his case is. Since it is common ground that, in the absence of those documents, no arguable case can be established, it follows that an order nisi should be refused in the proceeding.

36 Counsel for the applicants has confirmed that the form of affidavit and order nisi filed in each of the other proceedings presently before me is in a relevantly similar form to that in this proceeding. Accordingly, I propose to make an order in each of the other proceedings before me refusing an order nisi. It follows from what I have said that there should also be orders, as contemplated by O 51A r 5(2), that the Court will not hear argument on whether an order absolute should be made.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Counsel for the Applicant:	Mr B Zipser

Solicitor for the Applicant:	Mr A Joel

Counsel for the Respondent:	Mr A Markus

Solicitor for the Respondent:	Ms K Alexander

Date of Hearing:	19, 20 February 2003

Date of Judgment:	20 February 2004