Taylor v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCAFC 48

FEDERAL COURT OF AUSTRALIA

Taylor v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 48

PRACTICE AND PROCEDURE – operation of Order 80 of the Federal Court Rules –application for an adjournment granted

Federal Court Rules O 80

NEVILLE TAYLOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
WAD 210 OF 2004

MOORE, NORTH AND EMMETT JJ
22 FEBRUARY 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	WAD 210 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NEVILLE TAYLOR APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MOORE, NORTH AND EMMETT JJ
DATE OF ORDER:	22 FEBRUARY 2005
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appeal be adjourned generally.

2.Costs in the matter be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	WAD 210 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NEVILLE TAYLOR APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	MOORE, NORTH AND EMMETT JJ
DATE:	22 FEBRUARY 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

MOORE J:

1. This appeal was listed for hearing yesterday. The appellant then applied for an adjournment. The application has been renewed this afternoon and it would appear there are two grounds advanced in support of the application. The first concerns the fact that a legal practitioner appointed under O 80 of the Federal Court Rules has sought and been given leave to withdraw from the provision of representation. The second is that the appellant proposes to commence proceedings in the Supreme Court of Western Australia challenging his conviction in 2000 for offences which, in part, founded the decision of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") under s 501 of the Migration Act 1958 (Cth). The appeal relates to the decision of the Minister to deport the appellant under that section (a criminal deportation).

2. As to the second ground, it is not apparent from the submissions made in support of the adjournment that the proceedings in the Supreme Court, if they are instituted and if they are successful, could have any bearing on this appeal.  Accordingly, in my view, the fact that those proceedings may be commenced does not provide a basis for adjourning the appeal.

3. The first ground concerns representation in the appeal.  Order 80 of the Federal Court Rules contemplates a judge making an order concerning legal representation which may be cast in a variety of ways.  As a matter of fact, French J made an order on 1 October 2004 that the appellant be referred for legal assistance under O 80 in relation to advice in the appeal and representation generally in the conduct of the appeal.  I am using the word "appeal" in substitution of the word "proceeding", which is the expression actually used in the referral certificate.  It would appear that the legal practitioner to whom the matter was referred sought leave of the Registrar to withdraw and that application was successful.

4. There are a multitude of reasons identified in O 80 why a legal practitioner can seek leave and be given leave to withdraw.  They include, and I paraphrase the provisions of O 80, that the legal practitioner takes the view that the proceedings will not or may not succeed.  We are not aware of the reasons given by the legal practitioner for seeking leave and obtaining leave to withdraw.  It may be that that is one of the bases.  It may be, however, there is an entirely different basis.  However, a judge of this Court has made an order, and until such time as that order is varied or revoked, it operates in the appellant's favour to have, at least prima facie, legal representation in the appeal.

5. It may be that the reasons given by the legal practitioner would warrant a judge of this Court varying or revoking the earlier order.  But that has not happened.  There is an operative order of the Court under O 80, which weighs heavily in support of the adjournment application.  In my view, it would be appropriate to adjourn the appeal. 

6. The only order I would make is that the appeal be adjourned generally.  Whether the matter will be listed in the May sittings would be ultimately a matter for the Chief Justice in consultation with the listing appeals judge in Western Australia.  It may be that in the meantime, the order made under O 80 may have to be reviewed by a judge. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             5 April 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	WAD 210 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NEVILLE TAYLOR APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	MOORE, NORTH AND EMMETT JJ
DATE:	22 FEBRUARY 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

NORTH J:

1. I agree with the orders proposed by the presiding judge and his reasons for those orders.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             5 April 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	WAD 210 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NEVILLE TAYLOR APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	MOORE, NORTH AND EMMETT JJ
DATE:	22 FEBRUARY 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

EMMETT J:

1. I also agree with the proposed orders for the reasons given.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             5 April 2005

The appellant appeared in person
Counsel for the Respondent:	MT Ritter SC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 February 2005
Date of Judgment:	22 February 2005