Madafferi v McKirdy [2003] FCA 310

FEDERAL COURT OF AUSTRALIA

Madafferi v McKirdy [2003] FCA 310 MIGRATION – immigration detention – agreement for detention at applicant's home – proper construction of agreement – application for injunction to restrain demand for payment – applicant required to pay costs of random daily visits– whether costs to be determined according to actual time taken Judiciary Act 1903 (Cth) s 39B(1A)(c) Migration Act 1958 (Cth) s 196 Australian Broadcasting Commission v Australasian Performing Rights Association Ltd (1973) 129 CLR 99 cited Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 cited VLAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1554 distinguished FRANCESCO MADAFFERI v LYNN McKIRDY, JOHN WILLIAMS and MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V113 OF 2003 HEEREY J 9 APRIL 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V113 OF 2003

BETWEEN: FRANCESCO MADAFFERI

APPLICANT

AND: LYNN McKIRDY (in her capacity as Manager for Victoria of the Detention Services & Travel Branch of the Department of Immigration and Multicultural and Indigenous Affairs)

FIRST RESPONDENT

JOHN WILLIAMS (in his capacity as State Director for Victoria of the Department of Immigration and Multicultural and Indigenous Affairs)

SECOND RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

THIRD RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 9 APRIL 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The respondents be restrained from demanding that the applicant pay the sum of $118,618.25 by 7 March 2003 and from treating the applicant as in breach of the agreement made on 14 March 2002 (being exhibit JA3 to the affidavit of Joseph Acquaro sworn 20 March 2003) by failure to pay the sum of $118,618.25 on or before 7 March 2003. 2. Declare that the demand in the letter of 6 February 2003 (being exhibit JA12 to the said affidavit) was in breach of the terms of the said agreement on its proper construction. 3. The application be stood over with liberty to apply. 4. The respondents pay the applicant's costs, including reserved costs.