FEDERAL COURT OF AUSTRALIA Goldie v Minister for Immigration & Multicultural Affairs [2002] FCA 687 PROCEDURE – application for injunctive and declaratory relief – failure of applicant to appear at directions hearing agreed to by him or at adjourned hearing – applicant's departure for overseas – whether amended application should be dismissed for his non-appearance PROCEDURE – application for injunctive and declaratory relief – notices of motion seeking summary judgment on ground no reasonable cause of action – notice of motions given by e-mail to applicant overseas – whether motions duly served – whether court should order informal service sufficient Migration Act 1958 (Cth) ss 5, 256 Federal Court Rules O 7 r 10, O 8, O 10 r 3(2), O 20 r 2 Parmakovski v Minister for Immigration & Ethnic Affairs (Davies J, 22 April 1996, unreported) followed BRIAN GERALD JAMES GOLDIE v PHILLIP MAXWELL RUDDOCK, MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS, ALLAN PIPER, CHIEF EXECUTIVE OFFICER, DEPARTMENT OF JUSTICE (WA) W487 of 2001 RD NICHOLSON J 31 MAY 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 487 of 2001 BETWEEN: BRIAN GERALD JAMES GOLDIE APPLICANT AND: PHILLIP MAXWELL RUDDOCK MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT ALLAN PIPER CHIEF EXECUTIVE OFFICER, DEPARTMENT OF JUSTICE (WA) SECOND RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 31 MAY 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the first respondent's costs except with respect to costs incurred in relation to the period from 10 – 24 April 2002. 3. There be no order as to costs in respect of the second respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W487 of 2001 BETWEEN: BRIAN GERALD JAMES GOLDIE APPLICANT AND: PHILLIP MAXWELL RUDDOCK MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT ALLAN PIPER CHIEF EXECUTIVE OFFICER, DEPARTMENT OF JUSTICE (WA) SECOND RESPONDENT JUDGE: RD NICHOLSON J DATE: 31 MAY 2002 PLACE: PERTH REASONS FOR JUDGMENT 1 O 10 r 3(2) of the Federal Court Rules provides that if no applicant appears before the court on a directions hearing the court may dismiss the application or make any other order which it thinks proper. The first and second respondents move the Court in reliance upon that rule to dismiss the application for this matter in the absence of the applicant. 2 The background circumstances are as follows. On 12 October 2001 the applicant filed with the Court an application for injunctive and declaratory relief. Broadly expressed, he sought an order in the nature of mandamus directing the respondents and each of them pursuant to s 256 of the Migration Act 1958 (Cth) ("the Act") to supply the applicant with all reasonable facilities for the purposes of prosecuting legal action in relation to his immigration status. He also sought related declarations. The respondents named were the present first and second respondents and the former third and fourth respondents. 3 In a supporting affidavit the applicant said that he had been in custody at Hakea Prison since February 2000, awaiting trial on State charges. He was also pursuing matters in the Federal Court and the High Court against the first respondent. Those latter claims were, he said, based around a refusal to him of a visa as the result of an alleged previous breach of visa conditions on a bridging visa E, dated 19 June 1998. He stated that despite repeated requests the first respondent, his solicitors and delegates, had been unable to produce details in relation to that visa. He also claimed that the second respondent had been authorised as an authorised officer pursuant to s 5 of the Act to detain him as an unlawful non-citizen, however, in an affidavit subsequently filed on 18 January 2002, that fact was disputed on the basis that the files of the Department administered by the first respondent do not contain any record of any authorisation to the second respondent to detain the applicant as an unlawful non-citizen. 4 On 9 November 2001 the applicant filed an amended application. That sought a remedy in the nature of mandamus against each of the then four respondents to provide the applicant with all reasonable facilities for the purposes of prosecuting legal actions with respect to his migration status. It further sought declarations in relation to the existence of duties to provide legal research and resource facilities to him and in connection with the implementation of the recommendations of what was described as the Sadleir Report. Further, declarations were sought as to what was meant by "reasonable facilities", relying on access to printing, photocopying and legal research materials as said to have been recommended by the Sadleir Report. A declaration was further sought that the costs of the implementation of the Sadleir Report are the responsibility of the second respondent. 5 Section 256 of the Act provides: "Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention." It was that section which the applicant apparently sought to rely upon in relation to the first respondent. The second respondent is the Chief Executive Officer of a State entity which has the responsibility in relation to the prison system. The third respondent was the Superintendent of that prison, and the fourth respondent, the Zone Manager of that prison. 6 On 10 April 2002 the applicant was granted parole in relation to the offences which had in fact occasioned him to be imprisoned in Hakea Prison. The consequence of that was that he was then immediately transferred to the Perth Immigration Detention Centre, a place of custody falling within the responsibilities ultimately of the first respondent. 7 On 18 April 2002 the applicant was brought to Court for the purposes of a directions hearing in this matter. The directions made at that time were to the effect that the applicant complete the filing and serving of a notice of motion to join a fifth respondent and to seek urgent interlocutory relief against the first and proposed fifth respondent and related supporting evidence, and providing opportunity to the respondents to respond to those matters, and the applicant to file any reply. The matter was, with this concurrence, set down for the hearing of the motions and directions on Wednesday, 1 May 2002 at 2.15pm. The applicant was not present on that occasion. 8 There was good reason for that. The reason appears in an affidavit filed on 30 April 2002 on behalf of the first respondent. That affidavit makes apparent that the applicant voluntarily left Australia on Wednesday, 24 April 2002 and was released from immigration detention on that date. Annexed to the relevant affidavit are the terms of the applicant's agreement to voluntary departure. He stated: "I confirm that I have agreed to depart voluntarily and these arrangements for my departure without prejudice to any of my current proceedings pending in the High Court of Australia and the Federal Court of Australia and without prejudice to my right to return to Australia if my appeal is successful, and without prejudice to my right to recover damages against the Commonwealth of Australia, the Minister for Immigration & Multicultural Affairs, and Michael Allan Cain." The latter named person was apparently the officer responsible for the original detention of the applicant. 9 In a response to this in a letter from the Department of Immigration & Multicultural & Indigenous Affairs dated 22 April 2002 the applicant was advised: "I note that you have placed certain caveats on your proposed departure. I cannot confirm that you will have an automatic right of return to Australia regardless of any Federal Court appeal outcome." In my opinion this does not dispute the condition put forward by the applicant that his departure would be without prejudice to any of his current proceedings in this Court and hence without prejudice to the present proceeding. I will return to the applicant's conditions below. 10 On 18 April 2002 the applicant provided to the Court a re-amended application which he intended to pursue. He had in the meantime as a consequence of his release from Hakea Prison consented to the discontinuance of the action against the third and fourth respondents. The re-amended application reflects that fact. Aside from abandoning the claim for two of the declarations previously sought, the proposed re-amended application seeks an order that the second respondent refund the applicant's costs. The second respondent understands this would be pressed as a claim for the costs incurred during the applicant's periods of detention in advancing his claim against the second respondent. 11 The applicant sought to have joined as fifth respondent, the manager of the Perth Immigration Detention Centre. Essentially, it is proposed by the applicant as disclosed by affidavit material upon which he intends to rely that the detention centre deprived him of access to his computer and other documents to enable him to pursue his claims. 12 Unless the applicant appears and pursues his claim, the re-amended application is not presently before the Court. 13 On 26 April 2002 the second respondent filed a notice of motion seeking dismissal of the action against it. This is done on the basis that the further amendments to the application sought by the applicant in respect of the second respondent shows an intention to bring as against it an application for declaratory and prerogative relief in relation to his current circumstances being essentially an action for damages relating to past events, namely expenditure by him during his incarceration in Hakea Prison. It is intended to contend that this lies outside the jurisdiction of this Court. That notice of motion has not been served on the applicant and therefore requires no further consideration. 14 On 30 April 2002 the first respondent brought a notice of motion seeking dismissal as against it of the application. The grounds of the application are that the applicant has departed Australia and that the relief sought is otiose. That motion has not been served on the applicant and requires no further consideration. 15 The question therefore arises whether, absent any further appearance by the applicant, the Court should dismiss the action pursuant to O 10 r 3(2). There is authority that a relevant and important factor persuasive of dismissal will be the fact that the applicant has no prospects of success: Parmakovski v Minister for Immigration & Ethnic Affairs (Davies J, 22 April 1996, unreported). In my view that is the position here in relation to the applicant's amended application. 16 The first paragraph of the amended application seeks a remedy in the nature of mandamus in respect of the provision of all reasonable facilities to the applicant for the purposes of prosecuting legal actions with respect to his migration status. He being no longer in prison or in detention, such remedy would be futile. Similarly, the remedy sought in par 1A to provide him with legal research and resource facilities on the basis of a statutory or common law duty would be futile. The same is equally true of par 1B relating to the implementation of the recommendations of the Sadleir Report which could no longer have any application to the applicant. Likewise, as sought in par 2, a declaration as to the content of reasonable facilities could have no application to the applicant. Paragraph 3A seeks a remedy by way of declaration that the costs of the implementation of the Sadleir Report are the responsibility of the second respondent, but this is not a matter in which the applicant, any longer, has any interest. 17 In my opinion it is appropriate for the discretion to be exercised to dismiss the amended application filed on 9 November 2001 on the basis of the non-appearance and further non-prosecution by the applicant following his departure from Australia. 18 I am fortified in the exercise of that discretion by evidence of events which have transpired since the hearing before me on 1 May 2002. At that hearing and as a consequence of reading the condition placed by the applicant upon his agreement to depart Australia voluntarily (namely, that it was without prejudice to his right to recover damages in the stated respects) I adjourned the application as previously mentioned to give the applicant the opportunity to take any step to advance this proceeding if he wished to do so. The evidence is as follows. On 2 May 2002 the solicitor for the first respondent received an e-mail message from the applicant. As a consequence on 9 May 2002 he forwarded an e-mail message to the applicant advising him that the hearing in this matter on 1 May 2002 had been adjourned for a further directions hearing on 28 May 2002. He enclosed a copy of the notice of motion filed on behalf of the first respondent on 30 April 2002 and advised that a similar motion had been filed on behalf of the second respondent on 26 April 2002. He gave notice that the first respondent would seek orders in terms of the notice of motion at the hearing on 28 May 2002. On 9 May 2002 the applicant advised the first respondent's solicitor that solicitors who had previously appeared for him would "progressively become solicitors of record in all matters". On 23 May 2002 the solicitor for the first respondent ascertained from the former solicitors of the applicant that they did not have instructions to act on behalf of the applicant in this matter. No appearance was made for the applicant at the hearing on 28 May 2002. 19 An affidavit was also filed by the solicitor on behalf of the second respondent. On being informed by the solicitor for the first respondent, with the applicant's consent, of the applicant's e-mail address the second respondent also sent an e-mail to the applicant. He attached a letter and a copy of the notice of motion and outlines of submissions previously filed. He invited the applicant to confirm by return e-mail that he considered such delivery of the notice of motion to be satisfactory service. The notice of motion sought dismissal in reliance on O 20 r 2 of the Federal Court Rules. On 23 May 2002 the solicitor for the second respondent caused a further e-mail to be sent to the applicant attaching a copy of a letter referring to the prior letter e-mailed on 10 May 2002 and stating the solicitor had been informed by the applicant's former solicitors that they were not instructed to act for him in relation to this matter. On 23 May 2002 the applicant replied, apologised for not responding; stating that he had not read the letter and undertaking to read it that evening and reply by close of business on 24 May 2002. No further correspondence by way of e-mail or otherwise from the applicant has been received by the solicitor for the second respondent. 20 It was contended on behalf of the respondents that the Court should order that the notices of motion seeking dismissal pursuant to O 20 r 2 should be the subject of an order that they are taken to have been served on the applicant. This is proposed in reliance on O 7 r 10 of the Federal Court Rules which provides that option "where for any reason it is impractical to serve a document in the manner set out in the Rules". 21 Of course in the case of the applicant in his present location the provisions of O 8 relating to service outside the jurisdiction have potential application. There is no evidence before me, beyond general inference from the circumstances of the applicant's location, that it is "impractical" to serve a document on the applicant in accordance with O 8. It may be more inconvenient but there is no basis for establishing, nor any basis for inferring, impracticality. Accordingly, I do not consider it can be accepted that the e-mail advice to the applicant of the notices of motion brought by each of the respondents constitutes service on him of those motions in these particular evidentiary circumstances. 22 However, it is evidence going to the exercise of the discretion in O 10 r 3(2) of the Federal Court Rules. That is, it confirms the view previously reached that the application should be dismissed because the non-appearance by the applicant at the directions hearing relied upon is continuing conduct on his part. That is the case even where there was an adjournment to enable him to be notified of the adjourned hearing and to make arrangements to appear at it. 23 Accordingly, it is appropriate for the application to be dismissed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 31 May 2002 Counsel for the First Respondent: Mr PJ Corbould Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr DJ Matthews Solicitor for the Second Respondent: Crown Solicitors Office Date of Hearings: 1 May 2002; 28 May 2002 Date of Judgment: 31 May 2002