Blair v Howat & Jago [2001] FCA 156 (13 February 2001)

Last Updated: 1 March 2001

FEDERAL COURT OF AUSTRALIA

Blair v Howat & Jago [2001] FCA 156

STEPHEN DORIAN BLAIR v FRANCES HOWAT AND BRIAN JAGO

N 967 OF 2000

HILL, WHITLAM AND TAMBERLIN JJ

13 FEBRUARY 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 967 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	STEPHEN DORIAN BLAIR APPELLANT
AND:	FRANCES HOWAT FIRST RESPONDENT BRIAN JAGO SECOND RESPONDENT
JUDGES:	HILL, WHITLAM AND TAMBERLIN JJ
DATE OF ORDER:	13 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the respondents' motion be granted;

2. the appeal be dismissed;

3. the appellant pay the costs of the appeal including the costs of the motion; and

4, the appeal be properly entitled Stephen Dorian Blair, appellant, against Frances Howat and Brian Jago, respondents.

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	N 967 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	STEPHEN DORIAN BLAIR APPELLANT
AND:	FRANCES HOWAT FIRST RESPONDENT BRIAN JAGO SECOND RESPONDENT

JUDGES:	HILL, WHITLAM AND TAMBERLIN JJ
DATE:	13 FEBRUARY 2001
PLACE:	SYDNEY

HILL J:

REASONS FOR JUDGMENT

1 I agree with what Justice Whitlam has said in his reasons for decision and the conclusions to which he has come. I would like to add a few comments. The present application arose out of an application which Mr Blair made to be placed on the electoral role. That application was rejected apparently because an officer of the Divisional Returning Office was not satisfied he was an Australian citizen or a British subject enrolled on the roll as at 25 January 1984. In due course, following an internal review, an appeal was brought to the Administrative Appeals Tribunal.

2 If not before, at least then, it became obvious that Mr Blair could become registered on the electoral roll provided he obtained a certificate of Australian citizenship. Mr Blair has not made an application for that certificate. Instead, he commenced proceedings in this Court which, if not in form at least in substance, were treated by the learned primary judge as an application for a declaration that he was an Australian citizen. He also, in his application, sought damages against each of the respondents for misfeasance of public office.

3 His Honour refused to grant the declaratory relief which Mr Blair sought on discretionary grounds. One of the matters Mr Blair, from the bar table, said he wished to argue was that his Honour had refused to take into account that he had been in school in Australia between 1957 to 1965. Evidence of schooling was before Justice Beaumont but was not referred to in his judgment. This evidence, Mr Blair asserted, qualified him to be an Australian citizen pursuant to s 25 of the Australian Citizenship Act 1948 (Cth), a transitional provision that is no longer in force.

4 His Honour made reference to the fact that it seemed clear that Mr Blair did not wish to pay the prescribed fee of $55. Indeed, earlier this afternoon Mr Blair said the same thing although subsequently, when the matter was raised, he asserted that so to do would be asinine having regard to the great amounts of money which he had apparently expended and presumably nervous energy which likewise had been expended in the court case. Be that as it may, his Honour said, among other things, that it was an abuse of process to invoke the Court's jurisdiction if the purpose was to avoid paying a not unreasonable fee of $55. This was said by Mr Blair to be a mere assertion on the part of his Honour.

5 Mr Blair should understand that relief of a declaratory kind, which is the relief he seeks, is discretionary. It is normally not granted if there is an alternative remedy reasonably available to a person. There is clearly here a reasonable remedy available to Mr Blair. Whether or not he regards it as asinine that it is said that he brought proceedings in this Court to avoid payment of the $55 fee to attain a certificate of citizenship, the fact remains that for whatever reason he has chosen not to exercise the remedy available to him on the payment of $55. In my view, it is a perfectly proper exercise of discretion and reveals no error for his Honour to have dismissed the application for a declaration on discretionary grounds.

6 It is also clear that Mr Blair had no reasonable course of action to the extent to which he sought damages for what was said to be misfeasance of public office. Accordingly, it is clear to me that there is no reasonable prospect of Mr Blair succeeding in the appeal and that the appropriate order is that it be dismissed with costs.

7 I will direct that the appeal be properly entitled, Stephen Dorian Blair, appellant, against Frances Howat and Brian Jago respondents.

8 The order of the Court will be that the appeal be dismissed and that Mr Blair as appellant pay the costs of the appeal including the costs of the motion.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated: 28 February 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 967 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	STEPHEN DORIAN BLAIR APPELLANT
AND:	FRANCES HOWAT FIRST RESPONDENT BRIAN JAGO SECOND RESPONDENT

JUDGES:	HILL, WHITLAM AND TAMBERLIN JJ
DATE:	13 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WHITLAM J

9 The respondent moves for orders that the appeal be dismissed for want of prosecution or, alternatively, that it be dismissed as disclosing no reasonable cause of action. In either event the consequence would be, of course, summarily to dismiss the appeal without it proceeding to a hearing on its merits. The appeal was instituted by notice of appeal filed on 6 September 2000 from a considered judgment of Beaumont J given on 4 September 2000.

10 The background to the proceeding in the Court below is set out in his Honour's reasons for judgment. The final relief sought by the appellant in his initiating application was:

"1 Recovery of costs, [emotional] and mental stress, undue process, discrimination, failure to apply law as written legislated, etc.

2 Review of powers of DIMA [the Department of Immigration and Multicultural Affairs] & AEC [the Australian Electoral Commission] to act arbitrarily and with [misfeasance] prejudicially with my claim and right to have my Australian citizenship recognised. Recovery of costs and damages including inflicting damage to my health & well being."

11 From what had been obviously a mass of material before the Court below, his Honour distilled (at [5]-[14]) the factual background of the application. I do not understand the appellant to take issue with any part of that narrative or, at least, he has not done so in the hearing of the motion before us this afternoon. The essential claim of the appellant is that he is a citizen of this country and, on that basis, is entitled to be placed on the electoral roll.

12 The proceedings at first instance were evidently prompted by two pieces of correspondence sent by the respondents. The first was a letter dated 13 September 1999 to the appellant from the first respondent (who is the Australian Electoral Officer for New South Wales), which dealt with the question of the appellant's citizenship. The second was a facsimile dated 7 December 1999 to the first respondent from the second respondent, (who is an officer of the Department of Immigration and Multicultural Affairs), which also dealt with the same subject matter.

13 The nub of the matter posed for determination by Beaumont J was that the appellant was effectively seeking declarations in respect of his entitlement to be on the electoral roll arising out of his asserted Australian citizenship. His Honour said:

"19 However, since I have come to the view that for discretionary reasons the application should be dismissed, I prefer not to construe many of the claims made by the applicant in his application too literally. I would add that there certainly are live issues of contention of one kind or another between the parties before the Court.

20 On behalf of the respondents it is further submitted that the application should be dismissed on discretionary grounds. For the moment I am prepared to assume, in the applicant's favour, that he is seeking declaratory relief as to his citizenship status, coupled with an application for a prerogative writ in the form of mandamus that the matter be considered by the executive arm of government in accordance with law. Although there may be jurisdiction to entertain such a matter, it does appear that there is a procedure available to the applicant under the Australian Citizenship Act and the Regulations. Indeed, the applicant does not seriously contest this proposition, which I am prepared to accept as valid for all present purposes.

21 Under Reg 8 of the Australian Citizenship Regulations `[a] person who is an Australian Citizen and makes an application in the approved form and pays the prescribed fee of $55 must be issued with a declaratory certificate of citizenship'. Reference was also made on behalf of the respondents to s 31 of the Australian Citizenship Act in this connection. The blunt fact is that the applicant has not availed himself of this procedure although he is well aware of it.

22 The matter has come forward in this Court on the footing that the applicant is exempt from filing fees. It became quite clear to me, in the course of argument, that the reason why the applicant was here and not in the other quite appropriate forum provided under Reg 8 is that the other forum requires the payment of a prescribed fee of $55. It is the required payment of that fee that has generated the litigation in this Court.

23 In my opinion, it is an abuse of the process of the Court to invoke it for that purpose. In any event, this being in substance an application for prerogative relief of the kind I mentioned, such a remedy is clearly discretionary and it is, of course, settled beyond question that the availability of an appropriate alternative remedy is a good reason for refusing to grant discretionary prerogative relief.

24 I agree entirely with the submissions of the respondents that, in essence, the applicant is seeking to ventilate the issue of recognition of his Australian citizenship in these proceedings as he does not believe he should have to pay a prescribed fee to obtain the documentary evidence which he could then produce as evidence of his citizenship to other agencies. In those circumstances, the Court in its discretion should refuse the relief sought."

14 The appellant has, on the hearing of the motion today, described the observation in the final sentence of [22] above as "asinine" amongst other labels that he has placed upon it. In my view, plainly that was a matter to which his Honour could have regard in the exercise of a discretion whether to grant the relief sought by the appellant. I respectfully agree with what his Honour said in [23] about it being an abuse of process to invoke the Court's process for the appellant's purpose. What his Honour said about the appellant's other claims is beyond dispute. I would accede to the motion on the basis that the appeal is utterly hopeless and has no reasonable prospects of success.

15 However, in my opinion, the appeal should also be dismissed for want of prosecution. The affidavit in support of the appellant's motion is that of Mr Matthew William Humphreys-Grey affirmed on 31 January 2001. It sets out the course of developments since the notice of appeal was filed in relation to the fixing of an appointment to settle appeal papers, the call over of the appeal and the settling of appeal papers. Annexed to that affidavit is what I would understand to be relevantly all the correspondence touching on this question.

16 So far as the matters agitated by the appellant in opposition to this ground of the respondents' motion are concerned, the main matter appears to be his medical condition. The most up-to-date information on this question is a letter dated 28 December 2000 addressed to the Australian Government Solicitor from Dr Sabiti Reddy, a doctor at the North Sydney Medical Centre. The letter describes the appellant's condition thus:

"Mr Blair has recurring medical problems such as staph infection of the left foot. He has an abdominal hernia operation in March 2001.

He has been advised by the specialists at the Royal North Shore Hospital to stay off his feet, i.e. bed rest after his surgery in December and after his next scheduled surgery in March.

Mr Blair will be medically unfit till [sic] at least June 2001."

17 Notwithstanding what is said in that document, there is nothing before the Court to indicate that anything has occurred since December 2000 which would preclude the appellant from preparing, in writing, proper grounds of appeal. Such grounds are entirely absent from the notice of appeal and submissions in support of his appeal. In any event, what the appellant has said today from the bar table does not convince me, as I said a moment ago, that he has any prospects of succeeding in his appeal. Counsel for the respondent has prepared a very careful set of submissions dated 7 February 2001 which set out the background facts relating to this matter and the way in which the appeal has been prosecuted. In my opinion, on both grounds relied on by the respondents, the motion should be granted and the appeal should be dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated: 28 February 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 967 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	STEPHEN DORIAN BLAIR APPELLANT
AND:	FRANCES HOWAT FIRST RESPONDENT BRIAN JAGO SECOND RESPONDENT

JUDGES:	HILL, WHITLAM AND TAMBERLIN JJ
DATE:	13 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

TAMBERLIN J:

18 In this matter I agree with the reasons and orders proposed in the preceding judgments. The crux of the decision of his Honour lay in paragraph 23 where his Honour said that in substance the application before him was for discretionary relief of a declaratory nature and his Honour pointed out that it is settled law that the availability of an appropriate alternative remedy can be a sufficient reason for refusing to grant discretionary relief.

19 The alternative suitable relief in the present case is the availability of an application pursuant to Regulation 8 of the Australian Citizenship Regulations made under the Australian Citizenship Act 1948. That regulation provides a straightforward, simple procedure to be followed for a modest fee. The jurisdiction of this Court should not normally be invoked in situations where there is such a suitable, simple, and relatively inexpensive alternative remedy and in this respect I agree entirely with the statement made by his Honour, the primary Judge, in the paragraph to which I have above referred.

20 Also I note that no attempt appears to have been made by the appellant to comply with any of the directions which were issued for the preparation of this matter by the Court. These directions are not matters which can lightly be not complied with and, accordingly, I consider that the failure to take any steps to give effect to these directions and to prepare the matter properly for hearing also operates as an independent ground and basis for dismissing this appeal.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 28 February 2001

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	R M Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 February 2001
Date of Judgment:	13 February 2001