Blair v Howat & Jago [2001] FCA 156

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.