FEDERAL COURT OF AUSTRALIA Applicant A221 of 2003 v Refugee Review Tribunal [2004] FCA 380 APPLICANT A221 OF 2003 v REFUGEE REVIEW TRIBUNAL AND SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 770 OF 2003 LANDER J ADELAIDE 22 MARCH 2004 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 770 OF 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: APPLICANT A221 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: LANDER J DATE OF ORDER: 22 MARCH 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The applicant's application for the issue of constitutional writs be dismissed. 2. The applicant to pay the respondents' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 770 OF 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: APPLICANT A221 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: LANDER J DATE: 22 MARCH 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 On 30 May 2003 the applicant brought proceedings in the High Court of Australia seeking the issue of the constitutional writs. The proceedings which were brought against the Refugee Review Tribunal, the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs and the Commonwealth of Australia were remitted to this Court for hearing. On 3 November 2003 I made the following orders, amongst other orders: '3. The applicant file and serve: a. a statement of contentions of relevant facts and law setting out: i. if the applicant has previously sought judicial review of the Refugee Review Tribunal decision the subject of this application, the reasons why the application should not be dismissed; and ii. if the applicant requires an extension of time within which to file this application, the reasons why an extension of time should be granted; and iii. particulars of the grounds relied upon for this application for the issue of prerogative writs and orders sought. b. any affidavits in support of any of the contentions in para 3(a) which the applicant intends to rely on at the hearing on or before 15 December 2003.' 2 I adjourned the further directions hearing until 22 December 2003. At the same time as making those orders, I made the further following order: '5. In the event that order 3 is not complied with, the applicant will be called upon at the adjourned directions hearing to show cause why the matter should not stand dismissed.' 3 The matter came on for hearing again on 18 December 2003 and, at that stage, at the request of the applicant's then solicitor, I extended the time within which the applicant had to comply with par 3 of my order of 3 November 2003 until 8 January 2004. At the same time, I made the further following order: '2. In the event that order 3 of my order of 3 November 2003, as extended by paragraph 1 of these orders, is not complied with by 8 January 2004, the applicant will be called upon at the adjourned directions hearing to be held on 19 February 2004 at 9.00am to show cause why the matter should not stand dismissed.' 4 The matter was adjourned until 19 February 2004. The applicant was again represented at that time. The applicant's then solicitor advised me that he intended to serve on the applicant a Notice of Intention to File and Serve a Notice of Change of Solicitor pursuant to O 45 r 7. I directed him, at that stage, to advise the applicant that: '2.1 I have extended the time within which the applicant has to comply with paragraph 3 of my orders of 3 November 2003 until 4 March 2004; and 2.2 The further hearing of the applicant's application is adjourned until 22 March 2004 at 9.00am.' 5 On 18 March 2004 an affidavit was filed in this Court by Jenny Wu, a part-time secretary employed by the applicant's former solicitors. She deposed that, on 1 March, she was instructed by the applicant's former solicitor to post a letter to the applicant which is exhibited to her affidavit. The letter is in the following form: 'We refer to (sic) you to our letter of the 8th January 2004 in which we sought evidence from you indicating that there was a real chance of persecution if you returned to Fiji, as you have failed to provide such evidence we have on the 19th February 2004 withdrawn from the case.' 6 The letter also stated that a copy of the Court order of 19 February 2004 was enclosed. 7 The applicant appeared in person this morning and has sought a further extension of time within which to comply with my orders of 3 November 2003. He said that he only received Mr Patel's letter last Tuesday and he wishes to instruct a solicitor to advise him in relation to his application. He was not able to tell me why it was that he had not provided Mr Patel with the information sought by Mr Patel on 8 January 2004. He said that he was not advised why Mr Patel wanted that information. 8 The applicant has previously brought legal proceedings in this Court seeking judicial review of the decision of the Refugee Review Tribunal. Those proceedings were heard and determined by von Doussa J on 3 August 2001. The application for judicial review was then dismissed. 9 In my opinion, there is no reason why any further extension of time should be given to the applicant to comply with my orders. No satisfactory explanation has been given for his failure to do so. There is no reason to think that any further time will allow him to comply with those orders. In those circumstances, the application for the issue of the constitutional writs should be dismissed on the ground that the applicant has failed to comply with my orders and has failed to prosecute those proceedings. 10 The applicant to pay the respondents' costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 1 April 2004 Counsel for the Applicant: The Applicant appeared in person Counsel for the First and Second Respondents: E Reed Solicitor for the First and Second Respondent: Australian Government Solicitor Date of Hearing: 22 March 2004 Date of Judgment: 22 March 2004