Gersten v Minister for Immigration & Multicultural Affairs [1999] FCA 449 (15 April 1999)

Last Updated: 16 April 1999

FEDERAL COURT OF AUSTRALIA

Gersten v Minister for Immigration & Multicultural Affairs [1999] FCA 449

MIGRATION - application to set aside and vacate earlier orders dismissing an application for judicial review - whether in all of the circumstances the orders should be set aside - application dismissed due to non-appearance at directions hearing - substantive proceedings concerned with the constitutional validity of Part 8 Migration Act 1958 (Cth) - whether issue purely hypothetical - effect of High Court proceedings dealing with the same issue - appropriateness of the Court considering the validity of legislation in the abstract - whether any purpose served by the continuation of the proceedings - costs - question of costs when supervening event renders proceedings hypothetical - whether ordinary principle that each party bear their own costs should be applied.

Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 143 ALR 1

James v South Australia [1927] HCA 32; (1927) 40 CLR 1

JOSEPH GERSTEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 688 OF 1997

MOORE J

15 APRIL 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 688 OF 1997

BETWEEN:	JOSEPH GERSTEN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	MOORE J
DATE OF ORDER:	15 APRIL 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Order 2 of the orders made on 10 February 1999 is set aside.

2. Otherwise the notice of motion filed 16 February 1999 is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 688 OF 1997

BETWEEN:	JOSEPH GERSTEN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MOORE J
DATE:	15 APRIL 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application by Mr Joseph Gersten ("the applicant") to set aside and vacate orders I made on 10 February 1999. I then ordered, on the application of the Minister for Immigration and Multicultural Affairs ("the Minister"), that proceedings brought by the applicant be dismissed and the applicant pay the Minister's costs. I did so because of the failure of the applicant or his solicitor to appear on that day: see O 10 r 3(2). However I also ordered that the Minister not enter the orders until 7 days after they had been served on the applicant. On 16 February 1999 the applicant filed the present notice of motion seeking to set aside and vacate the orders. Accompanying that application was an affidavit of the applicant's solicitor, Mr Alex Lee, who said that his failure to appear on 10 February 1999 was a result of his own error of not recording that date in his diary. He also said the applicant was, on 10 February 1999, acting as counsel in a trial in Queensland and would not have been able to attend even if he had been informed of the date.

2 The solicitor appearing for the Minister submitted that the issue of whether the orders of 10 February 1999 should be set aside involves not only the question of whether the applicant can satisfactorily explain his failure to attend, but also whether, in all the circumstances, the orders made should be set aside. I agree. It was submitted on behalf of the Minister that the proceedings now only raise an issue that is hypothetical. In order to consider this question it is necessary to briefly set out the history of the matter.

Background

3 The applicant is a citizen of the United States of America and a former politician in the state of Florida. He arrived in Australia on a visitor visa in September 1993 and on 19 October 1993 lodged an application for a protection visa. That application was refused on 6 December 1993 and on 30 December 1993 the applicant lodged an application for review of that decision by the Refugee Review Tribunal ("the Tribunal").

4 In September 1995, while the review application was pending, the applicant sought relief in the Federal Court against the conduct of the Tribunal, constituted by Mr Murray Gerkens (proceedings VG 786 of 1995). Mr Gerkens had refused requests that he disqualify himself from hearing the application. The applicant sought relief pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") to restrain Mr Gerkens from further hearing or considering his application for review by the Tribunal. The application in this Court also sought that Mr Gerkens provide the applicant with certain documents, believed to be in the possession of the Tribunal, that were or might be adverse to his interests. During the proceedings in this Court, heard by Sundberg J, the applicant sought orders that his name be suppressed and the evidence in the proceedings be kept confidential. On 2 November 1995 Sundberg J made orders that the applicant be referred to as "F" and that the Minister be joined as a party. On 28 May 1997 Sundberg J granted the applicant leave to discontinue the proceedings (as a result of the Full Court decision in Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1) and lifted the suppression order made on 2 November 1995. However the order to lift the suppression order was stayed pending an application to the High Court foreshadowed by the applicant. On 19 June 1997 the applicant lodged a notice of appeal in respect of the judgment and orders of Sundberg J dated 28 May 1997 but only in so far as they related to the lifting of the suppression order.

5 On 10 June 1997 the applicant filed a writ of summons and a statement of claim in the High Court (proceedings S 63 of 1997), naming Mr Gerkens as defendant in his capacity as a member of the Tribunal. The statement of claim sought a declaration that Part 8 of the Migration Act 1958 (Cth) ("the Act") was invalid and a writ of mandamus directed to Mr Gerkens commanding a response to a letter written on behalf of the applicant dated 4 August 1995. The letter requested that the Tribunal inform the applicant of any adverse material in its possession that it considered relevant to the applicant's application, so that the applicant could, in accordance with the rules of procedural fairness, have an opportunity to respond. On 11 June 1997 the applicant filed a further summons seeking leave to continue the proceedings under the initial "F". On 16 June 1997 Gummow J made orders, relevantly, that the Minister be joined as first defendant, the action continue with Mr Gerkens as second defendant and the proceedings be stood over for further mention on 29 July 1997.

6 On 22 July 1997 the Minister filed a summons seeking that the proceedings in the High Court be struck out as disclosing no cause of action and be summarily dismissed. On 28 July 1997 the applicant filed an amended statement of claim. The amended statement of claim was divided into Parts I, II, III, and IV and sought the following relief:

Part I: A declaration that Part 8 of the Act is invalid;

Part II: A writ of mandamus to Mr Gerkens commanding him to respond to the applicant's letters of 4, 11 and 15 August 1995;

Parts III & IV: An injunction, a writ of prohibition and a writ of mandamus directed to Mr Gerkens in respect of his conduct of the Tribunal hearing.

7 The matter then came before Gummow J on 29 July 1997. On that day the solicitor appearing for Mr Gerkens advised the Court that Mr Gerkens was to resign from the Tribunal effective 17 August 1997 and the Tribunal would need to be reconstituted to hear and determine the applicant's application. Gummow J indicated that he proposed to make orders striking out Parts II, III and IV of the amended statement of claim and to remit the matter to the Federal Court. His Honour adjourned the matter to 19 August 1997 to allow further submissions to be made as to whether such orders should be made.

8 On 19 August 1997, Gummow J made the following orders:

1. The proceedings brought against the second defendant be dismissed and the second defendant be removed as a party to the proceedings;

2. Parts II, III and IV of the amended statement of claim filed on 28 July 1997 be struck out for failure to comply with Order 55 of the High Court Rules;

3. The further proceedings in this mater, being the balance of the amended statement of claim and including the summons filed on 22 July 1997, be remitted to the New South Wales Registry of the Federal Court of Australia;

4. Certify for counsel in this Court on 16 June 1997, 29 July 1997 and 19 August 1997;

5. Costs of the proceedings in this Court be costs in the Federal Court of Australia and the costs of the former second defendant be the costs of the remaining defendant;

6. The costs of the proceedings in this Court are not to include the ex parte application made on 29 July 1997 and withdrawn in the course of the hearing on that day;

7. Continue until further order of the Federal Court of Australia order 4 appearing on page 21 of the transcript of 16 June 1997 to the intent that the further continuation of that order receive early attention in the Federal Court of Australia.

9 On 1 September 1997 the remitted proceedings were given a matter number in this Court, NG 688 of 1997. Those proceedings came before Davies J who on 29 September 1997 made the following orders:

1. The order of Gummow J as to confidentiality in matter S 63 of 1997 be continued until the seventh day after the hearing and determination of the application for leave to appeal, and of the appeal if leave be granted, from the judgment of Sundberg J in matter VG 786 of 1995;

2. The respondent's motion to strike out be listed on 20-21 November 1997;

3. The respondent to file and serve any affidavit material in relation to the motion within 14 days;

4. The applicant to respond within a further 10 days after that date.

10 On 6 October 1997, a Full Court of this Court dismissed the appeal from the orders of Sundberg J made 28 May 1997 in so far as they related to the lifting of the suppression order. On 18 November 1997 Davies J vacated the order fixing 20-21 November 1997 for the hearing of the Minister's strike out application. The matter was allocated to my docket in late May 1998 because of the pending retirement of Davies J. The proceedings came before me on 16 June 1998 and were adjourned. The same happened on 3 August 1998 and 15 September 1998. On 16 June 1998 it was noted that the suppression order had lapsed and proceedings NG 688 of 1997 were therefore to continue in the name of the applicant. On each occasion the Court was informed that a decision from the Tribunal was still pending and that the issue in the proceedings remained the challenge of the applicant to the validity of Part 8 of the Act. On 10 February 1999 the matter again came before me for directions. It was on that occasion that there was no appearance on behalf of the applicant and I ordered that the application be dismissed with costs.

11 On 8 October 1998 the Tribunal affirmed the decision of 6 December 1993 refusing to grant a protection visa to the applicant. The applicant instituted further proceedings in this Court (NG 1184 of 1998) seeking review of that decision. In that application, which is to be heard in July 1999 by another judge, relief is sought by the applicant pursuant to Part 8 of the Act, the ADJR Act 1976 and s 39B of the Judiciary Act. On 19 November 1998 the Minister filed an objection to competency in those proceedings on the ground that s 485 of the Act excludes the Court's jurisdiction to deal with the matter under the ADJR Act or under s 39B of the Judiciary Act.

12 Both before Gummow J and in this Court the applicant has maintained that the only outstanding issue before the Court in these proceedings, namely the validity of Part 8 of the Act, will be resolved by a pending High Court decision in an unrelated matter. That matter, Abebe v Minister for Immigration and Multicultural Affairs ("Abebe") (S 53 of 1998) seeks, inter alia, declaratory relief in relation to Part 8 of the Act in identical terms to Part I of the statement of claim in these proceedings. The High Court concluded its hearing of Abebe on 12 November 1998 and has reserved judgment. The applicant drafted the statement of claim in those proceedings and also appeared as junior counsel for Ms Abebe in the hearing before the High Court. In an affidavit filed 24 March 1999 in support of the notice of motion to which this judgment relates, the applicant reiterates what has been put to the Court of previous occasions, namely that the High Court's judgment in Abebe "will be dispositive of his prayer for declaration in the instant matter". The applicant submitted that whatever determination the Court might come to in this matter would be subject to the High Court's judgment in Abebe. Accordingly it is appropriate for this Court to stand the present matter down until judgment is delivered in Abebe.

13 As noted earlier the Minister has submitted that the earlier orders I made dismissing this application should not be vacated. That is because the proceedings now raise only a hypothetical issue. The applicant resisted that approach and submitted that the issue is not a hypothetical one and bears upon his rights to challenge a decision of the Refugee Review Tribunal under the Act. However the Minister has conceded that this issue can be raised in proceedings NG 1184 of 1998 and has indicated that he would not oppose any amendment to the application in those proceedings to raise that issue. It is comparatively clear that the real issue dividing the parties and founding, at least in substantial part, the resistance of the applicant to the dismissal of these proceedings is the question of costs. That is a matter I return to shortly.

14 As a matter of general principle a court will not embark upon the consideration of the validity of legislation in the abstract: see James v South Australia [1927] HCA 32; (1927) 40 CLR 1 at 38. The original jurisdiction of the Federal Court of Australia is conferred by s 19 of the Federal Court of Australia Act or, as in the present case, derives from s 44 of the Judiciary Act: see Johnstone v Commonwealth (1979) 143 CLR 398. Section 20 provides that the original jurisdiction shall, in the ordinary course, be exercised by a single judge. The basic issue in dispute between the applicant and the Minister is whether the applicant is entitled to a protection visa. The legal controversy attending that basic issue is whether its consideration by the Minister or his delegate and its consideration by the Refugee Review Tribunal is vitiated by administrative legal error. It is in the context of consideration of that legal controversy that the validity of Part 8 of the Act arises. If Part 8 is valid then the scope of judicial review in this Court is limited. If it is not valid, the scope for judicial review would appear to be broader. The proceedings before me now raise only the bare issue of validity. It no longer arises in the context of proceedings on which Part 8 might directly operate. Plainly that would not be so in relation to NG 1184 of 1998 in which another judge of this Court is exercising the Court's original jurisdiction to hear and determine the legal controversy between the applicant and the Minister attending the decision of the Refugee Review Tribunal of 8 October 1998. The issue of validity is, in the context of the proceedings before me, a hypothetical issue not relevant to the determination of any matter of which I am seized. No purpose is served by the continuation of the proceedings before me and I do not propose to set aside the earlier order I made dismissing them. Nor, in my opinion, is any purpose served by consolidating these proceedings with NG 1184 of 1998. It is clear the sole issue presently raised in these proceedings can, by consent, be raised in the other proceedings. Consolidation would not alter, in my opinion, the proper approach to the question of costs which I now address.

15 The applicant appears to believe that if the proceedings in the High Court brought by Ms Abebe result in a declaration that Part 8 is invalid then he will be entitled to his costs in these proceedings. I do not share that view. These proceedings, when originally instituted in the High Court, concerned, in substance, an application for prerogative relief against the member of the Tribunal named as a party. The question of the validity of Part 8 could only have arisen as an issue ancillary to the resolution of the proceedings seeking prerogative relief against that member. Because of the resignation of the member he was, by order of Gummow J, removed as a party to those proceedings. At that point, in my opinion, the issue of the validity of Part 8 became a hypothetical one. The resignation of the Tribunal member effectively brought the proceedings commenced in the High Court, as originally framed, to a conclusion. It was a conclusion that did not result in the resolution of any issues in favour of one party or the other. The principles governing costs in such a situation were discussed by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 143 ALR 1. It is not apparent to me that in bringing the proceedings the applicant acted unreasonably or that the Minister acted unreasonably in defending them though it must be accepted that the form in which they were brought was defective. In principle, each party should bear their own costs. The costs incurred in the proceedings after they had been remitted to this Court must also be considered. It is not entirely clear from the Court record what occurred before Davies J but that does not alter what, overall, has been the general course of these proceedings. It may be accepted that at all material times the Minister has asserted that the proceedings should be struck out and a motion to that effect, as earlier noted, has been on foot since 22 July 1997. However on each occasion the matter has been before me it has been adjourned and this course was either advocated or not opposed by the Minister. It was never opposed by the applicant. To the extent, therefore, that additional costs have been incurred by both parties since the matter was remitted to this Court, it is appropriate for each side to bear their own costs.

16 In the result the appropriate determination in relation to costs is, in my opinion, that no order be made as to costs. Accordingly I set aside the order I made on 10 February 1999 that the applicant pay the Minister's costs. The order I earlier made dismissing the application remains.

17 The preceding reasons were prepared and finalized before 14 April 1999. On that day the High Court gave judgment in Abebe. I was not aware, before 14 April 1999, that judgment was to be given in that matter. The High Court, as I understand their reasons (though I have not read them in their entirety), have accepted that Part 8 is valid. However that conclusion does not alter, for the reasons I earlier prepared, what I consider is the correct approach to be followed in this matter.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 15 April 1999

Counsel for the Applicant:	Mr J Coombs
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 March 1999
Date of Judgment:	15 April 1999