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Federal Court of Australia |
Last Updated: 23 January 2009
FEDERAL COURT OF AUSTRALIA
Staats v Gibbs [2009] FCA 27
(MOHAMMAD)
STEVEN STAATS v ROSS GIBBS, DIRECTOR-GENERAL, NATIONAL ARCHIVES OF
AUSTRALIA
SAD 183 of 2008
(MUHAMMAD) STEVEN J STAATS v
ROSS GIBBS, DIRECTOR-GENERAL, NATIONAL ARCHIVES OF AUSTRALIA & PAUL
O’SULLIVAN, DIRECTOR-GENERAL
OF SECURITY
SAD 190 of
2008
(MUHAMMAD) STEVEN STAATS v ROSS GIBBS, DIRECTOR-GENERAL,
NATIONAL ARCHIVES OF AUSTRALIA
SAD 194 of 2008
BESANKO
J
23 JANUARY 2009
ADELAIDE
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
The text of entered orders can be located using eSearch on the
Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA
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SOUTH AUSTRALIA DISTRICT REGISTRY
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SAD 190 of 2008
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BETWEEN:
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(MUHAMMAD) STEVEN J STAATS
Applicant |
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AND:
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ROSS GIBBS, DIRECTOR-GENERAL, NATIONAL ARCHIVES OF
AUSTRALIA
First Respondent |
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PAUL O’SULLIVAN, DIRECTOR-GENERAL OF SECURITY
Second Respondent |
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JUDGE:
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BESANKO J
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DATE OF ORDER:
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23 JANUARY 2009
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WHERE MADE:
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ADELAIDE
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THE COURT ORDERS THAT:
1. The description of the second respondent be amended to Director-General of Security.
2. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
The text of entered orders can be located using eSearch on the
Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA
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SOUTH AUSTRALIA DISTRICT REGISTRY
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SAD 194 of 2008
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BETWEEN:
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(MUHAMMAD) STEVEN STAATS
Applicant |
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AND:
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ROSS GIBBS, DIRECTOR-GENERAL, NATIONAL ARCHIVES OF
AUSTRALIA
Respondent |
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JUDGE:
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BESANKO J
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DATE OF ORDER:
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23 JANUARY 2009
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WHERE MADE:
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ADELAIDE
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THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
The text of entered orders can be located using eSearch on the
Court’s website.
|
|
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SOUTH AUSTRALIA DISTRICT REGISTRY
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SAD 183 of 2008
SAD 190 of 2008 SAD 194 of 2008 |
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BETWEEN:
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(MOHAMMAD) STEVEN STAATS
Applicant |
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AND:
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ROSS GIBBS, DIRECTOR-GENERAL, NATIONAL ARCHIVES OF
AUSTRALIA
Respondent |
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JUDGE:
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BESANKO J
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DATE:
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23 JANUARY 2009
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PLACE:
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ADELAIDE
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REASONS FOR JUDGMENT
1 There are three proceedings before the Court. The first proceeding is SAD 183/2008, (Mohammad) Steven Staats v Ross Gibbs, Director-General, National Archives of Australia. The second proceeding is SAD 190/2008, (Muhammad) Steven J Staats v Ross Gibbs, Director-General, National Archives of Australia and Paul O’Sullivan, Director-General of Security. The third proceeding is SAD 194/2008 (Muhammad) Steven Staats v Ross Gibbs, Director-General, National Archives of Australia. It will be seen that in proceeding SAD 183/2008 the applicant uses the spelling, Mohammad, in the title of the action, whereas in the other proceedings he uses the spelling, Muhammad. I was told by the legal representative for the respondents in SAD 190/2008 that Mr O’Sullivan is the Director-General of Security and not, as he was described in the application, the "Director-General, Australian Security Intelligence Organization". I will make an order amending the description of the second respondent.
2 Each proceeding was commenced by application issued in November 2008. In each application, the applicant seeks a writ of mandamus directed to the respondent (or respondents) to the application requiring the performance of duties said to arise under the Freedom of Information Act 1982 (Cth) or the Archives Act 1983 (Cth).
3 The three matters have proceeded together and there have been two directions hearings; the first on 16 December 2008 and the second on 21 January 2009. The applicant did not appear on either occasion. The respondent (or respondents) to each application seeks an order dismissing the application under O 35A of the Federal Court Rules (the Rules). The default of the applicant relied upon for the purposes of the application is his failure to attend at a directions hearing. In my opinion, the orders sought should be made in the case of each application.
4 It is necessary for me to outline the events which have occurred in relation to the applications, and it is convenient to do so by reference to proceeding SAD 183/2008. Similar observations apply in the cases of the other two applications.
5 In his application issued on 17 November 2008, the applicant gave his address for service as care of Poste Restante, GPO Adelaide, King William Street, South Australia, 5000. The application and affidavits sworn by the applicant accompanying the application were handwritten and are not easy to follow, not only because of the difficulty in reading the handwriting but also having regard to the syntax of the language used.
6 The respondent filed a notice of appearance on 11 December 2008. The application was listed for a first directions hearing on 16 December 2008. It seems that at about 9.15 am on that day, the applicant contacted a staff member of the Registry and advised that person that he was unable to attend the hearing at 9.45 am because he was going to be interviewing the President of the United States, Mr Bush, the President-Elect, Mr Obama, and the Prime Minister of Libya. He asked that he be permitted to appear by telephone and he said that it was his intention to appeal against any orders made on that day. He said that he was concerned that if he came into the Commonwealth Law Courts building, chemicals might be used on him. When the matter was raised with me, I indicated that I would not give the applicant permission to appear by telephone and the applicant was so advised. The proceeding came on for a first directions hearing at 9.45 am and the applicant did not appear. The respondent appeared through its legal representative. The respondent’s legal representative made reference to O 35A of the Rules and noted the applicant’s failure to attend the directions hearing. I decided to adjourn the directions hearing to 21 January 2009 and I indicated to the respondent that if he intended on 21 January 2009 to seek an order under O 35A then he should write to the applicant advising him of that fact.
7 At the directions hearing held on 21 January 2009, the respondent’s legal representative put before the Court a letter from the respondent’s solicitors to the applicant dated 24 December 2008 in which the applicant was given notice that the respondent may make an application under O 35A of the Rules if the applicant failed to attend the directions hearing on 21 January 2009. I am satisfied that the applicant received this letter because handwritten notes of the applicant appear on the copy of the letter provided to the Court.
8 In addition to that matter, there was correspondence between the Court and the applicant between the two directions hearings. After the hearing on 16 December 2008, my associate wrote to the parties, advising and, in the case of the respondent, confirming that the directions hearing had been adjourned to 21 January 2009 at 9.15 am. The letter also said:
At the hearing on 16 December 2008, the legal practitioner who appeared on behalf of the respondents in all three matters foreshadowed that if Mr Staats did not attend Court on the next occasion (that is, on 21 January 2009 at 9:15 am), the respondents may make an application pursuant to O 35A of the Federal Court Rules that the proceedings be dismissed by reason of Mr Staats’ non-attendance.9 The applicant wrote to my associate, by letter dated 24 December 2008. In his letter, he said the following:
I require that the future conduct of the proceedings for the three Applications SAD 183/2008, 190/2008 and 194/2008 be by way of written submission from both the Applicant and Respondent herein & herewith.10 The letter also referred to the applicant’s "attempted murder, attempted hospitalization and otherwise".
11 The applicant wrote a further letter to my associate, dated 25 December 2008, and, in that letter, he referred to attempts to "dispense with" him in Adelaide and the spraying of chemicals.
12 The applicant wrote a further letter to my associate, dated 30 December 2008, and, in that letter, he asked that I give reasons in relation to any decision on his "application" that the matter be conducted by way of written submissions.
13 My associate wrote to the applicant by letter dated 14 January 2009. In that letter, he said:
I write in response to your letter sent by facsimile dated 24 December 2008, and your letters sent by post dated 25 December 2008 and 30 December 2008 respectively. Justice Besanko is not satisfied that there is any reason to conduct proceedings in other than the normal way. Your application to conduct the proceedings by way of written submissions is refused. The directions hearing listed for 21 January 2009 at 9:15 am will proceed in the usual way.14 It is not clear to me that I have the power to make the order sought by the applicant. In any event, it seems to me that it would be entirely inappropriate for me to do so.
15 This Court has the power to conduct hearings by way of video link or telephone, as well as in the courtroom. The reasons why to do so is convenient in any particular case are usually quite clear. The Court also has the power in an appropriate case to order that the parties make their submissions on a particular point in writing.
16 The order sought by the applicant is quite different from the type of orders to which I have just referred and there is no basis for making such an order. At this stage, I know nothing about the precise issues in the proceedings (a defence or responding affidavit has not been filed), the means by which matters of fact will be proved, the nature of any disputes about the admissibility of evidence including documents, and the facts generally. Furthermore, the "back and forth" nature of dealing with matters by written submissions, particularly in a case in which one of the parties appears in person, is a further reason not to make the order sought. Dealing with a proceeding in this way may well place an intolerable strain on the Court, Court staff and the respondent.
17 I return to the chronology. On 16 January 2009, the applicant wrote to my associate stating that he intended to appeal my decision not to order that the matter be conducted by way of written submissions, and asking that any further directions hearings be adjourned.
18 The applicant has failed to attend two directions hearings without good
reason. He was warned prior to the second directions hearing
of the possible
consequences of non-attendance. In my opinion, in those circumstances, it is
appropriate in the case of each proceeding
to make an order dismissing the
application.
Associate:
Dated: 23
January 2009
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Counsel for the Respondents:
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Mr G Camilos
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Solicitor for the Respondent:
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Australian Government Solicitor
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