Unheard
It’s distressing that Federal Court judges frequently insist on birching Judge Sandy Street, which then requires me to fulfil the unhappy duty of reporting these unfortunate paddy-whacks.
Earlier this month, Justice Tom Thawley went so far as to say in Lou v Minister for Immigration that Sandy risked “shaking public confidence in courts”.
A big call, which ignores Sal Vasta’s contribution to the public being shaken, quite apart from all the turgid slow coaches and chain draggers we assiduously document.
Yee Ling Lou’s visa was refused by one of the minister’s faithful delegates. The refusal was upheld by the tribunal and a FCFC Registrar, whereby Lou sought judicial review from Sandy.
The Circuit Court sent the applicant an email on April 4, 2024 at 9.50 am saying the hearing of her case would take place the next day at 2.15 pm.
There is no evidence that any inquiry was made whether Ms Lou was aware of this, no follow-up phone call, nothing.
In fact, she didn’t read the email until after the “hearing” took place. She was there in person for the sessions before the tribunal and later before the Registrar.
Thawley thought there was nothing to suggest she would not be there for Sandy, if only she knew about it.
Judge Street, in his reasons for refusal, said he was satisfied the applicant was notified and that by not turning up she was in default, under the rules – see rule 13.06(1)(c).
HH Justice Thawley found that rule 13.06(1)(c) “is not a source of power to affirm a Registrar’s decision”.
Even though leave to appeal was not granted, the appeal judge went at it:
“It is unfortunate that an unrepresented applicant needing the assistance of an interpreter, who had appeared before the Tribunal and the Registrar to prosecute her case, had the unsatisfactory experience which this applicant did. It is one thing to lose a case after being heard. It is quite another to have a case dismissed without being given a reasonable opportunity to attend the hearing.
It is no answer to the unfairness visited on the applicant to say that the applicant was taken to have received the email sent to her the day before the hearing by virtue of the operation of the Electronic Transactions Act 1999 (Cth). The primary judge presumably had the email of 4 April 2024 and that Act in mind when stating, on 5 April 2024 (as later recorded in the published reasons), that he was ‘satisfied that the applicant was notified of the hearing date today’.
The material before this Court does not reveal that there was a sound basis to conclude that the applicant knew that her application for review had been listed for hearing on 5 April 2024 even if she was presumed by operation of law to have received the email of 4 April 2024.
The applicant had not previously failed to appear. No step
had been taken to ascertain her availability before the email of 4 April 2024 and no step was taken before the hearing to check whether she had received the email and managed to understand its content. These are the kinds of events which risk shaking public confidence in courts.”
Lou v Minister for Immigration
Tender is the night
It has been a blockbuster season for budget estimates conducted by the Senate Legal and Constitutional Affairs Committee. Quite a few revelations have dodged the headlights, but it’s unavoidable for the Federal Court and CEO Sia Lagos to escape without notice.
Naturally, it was Senator David Shoebridge (Greens, NSW) slipping his steel-tipped moccasin into the court’s failure to publish within the required timeframe legal services contracts totting up to more than $200,000.
These contracts are required to be published on the government’s AusTender website within 42 days of being signed.
The court seems to think it is something that may need to be done, saying this in an answer on notice:
“In relation to reporting contracts on AusTender, a data validation exercise identified a number of legal services engagements that were not reported on AusTender and where such publication may have been required. A practical decision was taken to place this material on AusTender and all necessary action was subsequently taken to ensure they were published.
More broadly, the Entity is implementing additional internal controls to strengthen AusTender reporting compliance, including enhanced monitoring processes, staff training and monthly compliance checks.”
From now on, everything is going to be tickety-boo.
The court was also asked: “Are there any other contract notices that, within the five financial years, should have been published by the Federal Court of Australia on the Commonwealth Government’s tendering website, but have yet to be published?”
The answer is a prize-winning example of public service newspeak:
“The Entity has taken steps to ensure that all relevant procurements in the current and prior financial years have been reported. In relation to the previous five years the Entity is in the process of undertaking additional data validation across historical data to ensure all relevant contracts have been appropriately reported.”
See: Questions and answers on notice
Disappearance
Gursajan Sidu was trying to overturn an AAT decision that upheld a decision by the minister’s delegate not to grant him a temporary student visa.
He came before Caroline Kirton of the Circuit Court, who on September 3, 2024, proceeded with a hearing. Without delivering judgment, she retired the following month, on October 16, 2024.
Two Wigs Willy Alstergren found out about it and made consent orders that it be determined on the papers by Judge Karl Blake.
The transcript of the proceedings before Kirton was an exhibit before Blake, and there were no further submissions.
Judge Blake ultimately decided on November 28, 2025, that the application be dismissed. That’s 15 months after Judge Kirton heard it before sailing off into the blue yonder with unfinished homework.
Sidhu v Minister for Immigration, Citizenship, Migrant Services, etc, etc
See earlier appearances by Judge Kirton
https://justinian.com.au/time-is-such-an-abstract-concept/
https://justinian.com.au/2023-lest-we-forget/
https://justinian.com.au/news/slumbering-snails-2/
Nought out of five
Darryl Rangiah, of Lattouf v ABC fame, received bad news from the Fulls in an appeal from his findings in a native title case.
Bernard Murphy, Sarah Derrington and Lizzy Bennett comprehensively overturned Darryl, upholding all five grounds of appeal.
The claim related to about 25,000 kilometres of land and waters west and south west of Rockhampton.
Rangiah found that the Gaangalu people occupied and had rights to the whole of the claim area, yet he determined they had not shown continued rights and connections to the area.
Further, the descendants of the named ancestors could not demonstrate they were members of the claim group.
Rangiah’s negative determination of April 30, 2024, was set aside with the parties to make written submissions as to the disposition of the appeal.
It’s not every day you see every ground of appeal from a Federal Court judge upheld in one hit.
Blucher on behalf of the Gaangalu Nation People v State of Queensland
It’s men’s work
The addition of Matthew Howard to the WA Supremes was destined to presage a powerful infusion of glamour with flair.
We found him dealing with an application for rectification of a creditor’s trust deed in the latest iteration of judicial thinking in the Wiluna Mining Corporation case.
In the course of his reasons we stumbled on remarks made earlier in an interlocutory hearing and repeated in his judgment:
“… as I was reading the papers quickly for the first directions hearing last week, I noticed that there appeared to be at least nine counsel briefed who had put their names to submissions. That is, three silks and at least six juniors, and I was struck by the fact that not one of them was a woman.
In 2025 in this Court, that is remarkable, and so I am remarking upon it. I do so because it should not be thought that this is the norm or an expected occurrence in this Court and in the Corporations List.
There is no lack, at the local Bar, nor the Australian Bar for that matter, of talented women barristers of all seniorities who are well experienced and well capable of conducting any matter in the Corporations List or in the Court’s other jurisdictions for that matter.
I note, also, that it appears from the papers that I’ve seen that each of the partners responsible in the firms instructing counsel in this matter is male. It’s unclear to me whether that has any relationship to the choice of counsel.”
Ouch. As we said, “glamour with flair”.
Wiluna Mining Corporation Ltd [No 2]
Essex – a county in England
The Legal Ethics Colloquium for Australia and New Zealand has just wrapped up at the University of Otago in Dunedin.
The International Legal Ethics Conference is the big global jamboree for academics and practitioners scheduled for December 2-4, next year in Houston, Texas.
It was evident at the Dunedin pow-pow that a lot of people don’t want to go to the United States. And who could blame them – after all, the current administration is engaged full-time in the debauchery of legal ethics.
Trump’s new entry requirements for visitors are another disincentive – requiring the provision of social media accounts for the past five years, five years of your phone numbers, 10 years of email addresses, IP addresses, metadata from electronically submitted photos, biometrics, and information about family members.
The Canadians have already made it clear they will not be coming to Houston. The lack of applications from other destinations is unsettling the organisers, so much so they are now looking to shift the event to another flawed democracy, Singapore – where the politicians win all the defamation cases.