Mansour, Anthony v Minister for Immigration & Multicultural Affairs [1998] FCA 421

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - application to set aside subpoena pursuant to O 27 r 9 Federal Court Rules - whether oppressive - whether relevant to substantive proceedings. Judiciary Act 1903 (Cth) - s 39B Migration Act 1958 (Cth) - s 485(1) Migration Reform Act 1992 (Cth) Federal Court Rules - O 27 r 9 Commissioner for Railways v Small (1938) 38 SR(NSW) 564 - applied ANTHONY MANSOUR -v- MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 8259 of 1997 NG 107 of 1995

FOSTER J 20 APRIL 1998 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA NG 8259 of 1997

NEW SOUTH WALES DISTRICT REGISTRY NG 107 of 1995

BETWEEN: ANTHONY MANSOUR

Applicant

AND: MINISTER FOR IMMIGRATION AND multicultural AFFAIRS

Respondent

JUDGE: FOSTER J

DATE OF ORDER: 20 APRIL 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The respondent's application to set aside the subpoena be upheld. 2. The applicant's notices of motion filed on 8 and 9 April 1998 be dismissed. 3. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA NG 8259 of 1997

NEW SOUTH WALES DISTRICT REGISTRY NG 107 of 1995

BETWEEN: ANTHONY MANSOUR

Applicant

AND: MINISTER FOR IMMIGRATION AND multicultural AFFAIRS

Respondent

JUDGE: FOSTER J

DATE: 20 APRIL 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT (Extempore) The notice of motion that I have before me this morning is brought by the respondent, described as the Department of Immigration. The application is for a subpoena filed on 6 March 1998 by the applicant, Anthony Mansour, to be struck out pursuant to O 27 r 9 of the Federal Court Rules on the ground that it is oppressive, and also on the ground that it is not relevant to the proceedings. The proceedings that are referred to in the notice of motion, in my view, quite clearly are proceedings which currently have been adjourned for hearing before me on 1 May this year. Those proceedings, stated compendiously, seek what the applicant has called the "reinstatement" of proceedings previously decided against him in this Court. The first of those proceedings was numbered NG 107 of 1995. It was an application for judicial review of a decision to grant a visa to the second respondent in those proceedings, the ex-wife of the applicant. The application was made pursuant to the Migration Act 1958 (Cth) ("the Migration Act") and also s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") and the accrued jurisdiction. The respondent filed a notice of objection to competency pursuant to the provisions of the Migration Act as amended by the Migration Reform Act 1992 (Cth). That matter was heard by Davies J on 14 November 1995. It appears that it was heard in the absence of the applicant, Mr Mansour. After consideration of the relevant statutory provisions his Honour gave a decision to the effect that the Court had no jurisdiction to hear the applicant's application. This apparently was on the basis that the relevant sections of the Migration Act limited the parties who could seek an order of review of the administrative decision to the person who was the subject of the decision and the Minister. Mr Mansour was, of course, not a party. It was accordingly held that he was not entitled to bring the proceedings. A similar order was made in respect of the application under the Judiciary Act, since s 485(1) of the Migration Act precludes that avenue of judicial review. Those orders of Davies J were in fact entered as orders of the Court on 15 November 1995. On 5 December 1995, the applicant filed a notice of motion to: first, as he said, "reinstate" the notice of objection to competency; secondly, vacate the order of costs that had been made against him by Davies J; and finally, to "reinstate" the application for an order of review. It appears that that matter was dealt with by Davies J on 8 February 1996, again in the absence of the applicant, and the application was dismissed. Thereafter, proceedings were taken in respect of the order for costs that had been made for the sum of $6,260.68. This process then led to the serving of a Bankruptcy Notice on the applicant. On 4 November 1997, in proceedings NG 8259 of 1997, the applicant sought to set aside the Bankruptcy Notice. That application was dismissed by Branson J in a hearing which took place on 2 December 1997. On 9 December 1997 the applicant filed a notice of motion to "reinstate" the application to set aside the Bankruptcy Notice before Branson J. He has also filed other notices of motion on 2 December 1997 and 27 February 1998 which relate in general terms to setting aside the orders of Davies J or reinstating those proceedings. The applications for "reinstatement", as I understand it, are the applications which are currently the substantive applications before the Court. The subpoena which has been issued by the applicant has been issued in relation to application NG 8259 of 1997. I am prepared, however, to assume from what has been put to me by the applicant, that it relates also to the proceedings in NG 107 of 1995 which he originally brought before Davies J and which he seeks to have reinstated. The subpoena is quite clearly oppressive, the documents sought are both ill-defined and numerous, and they have already, apparently, been the subject of a search in the Department of Immigration. An affidavit filed today indicates to me the extent of the search and the extraordinary difficulty that has been imposed upon the Department in attempting to seek out documents which might conceivably answer the wide descriptions which are given. Even without that affidavit I would quite firmly have been of the view that the subpoena is clearly in breach of the principles laid down in Commissioner for Railways v Small (1938) 38 SR(NSW) 564 which have been followed time and again in the courts of this country. The subpoena is no more than an attempt to obtain discovery. It lacks the specificity necessary to qualify it for the description of subpoena. Additionally, I have heard at considerable length, and I hope with reasonable patience, what has been put to me on behalf of the applicant as to why these documents, if they were capable of being obtained by this subpoena, would be relevant to the applications to which I have made reference. The first application as I said was dismissed on the ground of absence of jurisdiction at law. The second application was dismissed by Branson J on the basis that no evidence had been placed before her in relation to the Bankruptcy Notice which was the subject of that application, indicating that there was relevantly any cross claim or set off which could be brought against the judgment debt. I can see no possible basis, despite what has been put to me, for finding in any way that the material sought in this subpoena could have any relevance to those matters which are currently the subject of the applications before the Court. They seem to have no bearing whatever on the question of jurisdiction nor on the question of whether there was an answer to the Bankruptcy Notice. In any event, I recollect that the Court has been advised that no proceedings are being taken by the respondent in respect of the act of bankruptcy constituted by the failure to comply with the Bankruptcy Notice. In all these circumstances I uphold the application to strike out this subpoena and make an order that it be struck out with costs. Mr Mansour has filed on 8 and 9 April 1998 other notices of motion, most of which, so far as I can understand them, relate to the matter of the striking out of the subpoena, and, in particular, in relation to what is said as to the relevance of the documents that are sought. I can see nothing in these notices of motion which would not, apart from the question of the subpoena, be matters already covered in what he apparently seeks to raise in the proceedings which I am to hear on 1 May 1998. Accordingly, I also dismiss those notices of motion with costs. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate: Dated: 20 April 1998 The Applicant appeared in person

Counsel for the Respondent: Mr M. Murray, solicitor

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 20 April 1998

Date of Judgment: 20 April 1998