Case: Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: distinguished
Counsel for the appellant argued that what had been said by Gaudron and Gummow JJ in Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 117 [82] - [83] was apposite and that I should have regard to the fact that in that case a 4-month delay was not seen as disqualifying the prosecutor from relief to which she would otherwise have been entitled after jurisdictional error had been established. 60 In my opinion the facts in that case are quite remote from the facts in the present case. In this case it seems to me that the delays, in the history that I have set out, are substantial. They have no substantive meritorious explanation that would weigh the exercise of my discretion to ignore them to allow points which might be argued in favour of the appellant, including an error I found under s 424A, and the possible constructional error of some nicety in relation to the notification provisions, to be addressed. Both the error in relation to s 424A and possible error to which I have adverted are not, in my opinion, an injustice sufficient to overcome the delay of the appellant in this case. 61 I can take into account in considering that there is substantial unexplained delay or inadequately explained delay after many applications to the Court as in this case, as a matter to affect the exercise of my discretion. However, I am not going to do that in this particular case. 62 In my opinion there is a public interest in finality of litigation. It is important that litigants know that Courts are here to administer justice fairly and impartially, but once their cases have been heard or the procedures of the law have been put in motion and the litigants have had adequate opportunity to appear and present their cases and do not take the opportunity up for reasons which are not substantial enough, it is wrong to put the other party or parties to further expense by allowing the litigation to proceed. 63 It seems to me that it would be quite unfair to the respondent Minister, in this case having been engaged now in the fifth separate application to the Court, that the appellant has made, bearing in mind there were applications that were disposed of by Stone J, Emmett J the High Court and the trial Judge below and now by me, to decide this case on new arguments which are presented on the appeal for the first time to suggest errors in what had happened when the matter was heard by the Tribunal in 2003. 64 I see no error in the way that his Honour would have exercised his discretion had there been a jurisdictional error. But for the reasons that I have given, I am of the opinion that no adequate explanation for the delay has been given and that the interests of justice would not be served having regard to the delays with or without any such explanation by granting prerogative relief. I would refuse to exercise my discretion even were I satisfied that there were an additional error, to the one I have identified, in the new argument about notification sought to be raised. 65 I do not think that this case is a proper vehicle in which those arguments should be raised. The appellant had the opportunity to put fully his case to the Tribunal, in writing, in his application for review. He did not do so. He had the opportunity to attend and give evidence to the Tribunal, albeit that there is some explanation for his not doing so, the fact is he did not give his account to the Tribunal in writing even after the scheduled but unattended hearing. Maybe that was a result of his being unrepresented; that will enable him to have his remedies against whoever gave him bad advice. 66 In my opinion, the consequences of that bad advice should not be visited in the circumstances of this case on the respondents. The explanations, such as they are, that have been given do not satisfy me that in the exercise of my discretion I should grant relief. In my opinion the appeal should be should be dismissed with costs. 67 The Minister has asked that I fix $5500 as the amount of the costs to which, in an order for costs, she would be entitled. I am of the opinion that that is a reasonable sum and it is appropriate, in the exercise of my discretion, that I do fix it. Accordingly the orders I make are the appeal is dismissed; the appellant is to pay the costs of the first respondent in the sum of $5500. I certify that the preceding sixty seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 19 May 2006 Counsel for the Appellant: P King with C Carter Counsel for the First and Second Respondents: T Reilly Solicitor for the First and Second Respondents: Sparke Helmore Date of Hearing: 20 April 2006 Date of Judgment: 20 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/587.html