UPDATE … Trick or treat with Judge Sal … Apparently, parties should only to turn up at court if they know the result in advance … Ignoring the Federal Court’s advice on hearing unrepresented protection visa applicants … Another of Salvatore’s decisions remitted to be heard by a fresh judge … “His Honour erred” … Start again AND again
Judge Vasta must have forgotten that the Federal Circuit Court exercises the same original jurisdiction that the High Court has under s.75(v) of the Constitution, and in accordance with s.476(1) of the Migration Act.
In FVU18 v Minister for Home Affairs & Anor at paragraphs 40 and 41 Sal said, before dismissing the application for a protection visa with costs of $5,400:
Yet, isn’t it true that many lawyers bring matters, migration and otherwise, to the courts for determination where “they don’t know whether or not they will succeed or not”? The best that the lawyer can do is assess the probability of success and advise the client accordingly.
Given the complexity of migration law, unrepresented visa applicants will have no idea whether they will succeed or not.
If we had a transcript we might know whether or not the applicant’s admission that he “doesn’t really know why he is here” was freely made or was a response to one of Sal’s famous bullying sessions.
Maybe HH also forgot the approach followed by the Federal Court last year in DQQ17 v Minister for Immigration and Border Protection where Colvin J said:
“… it will rarely be appropriate to dismiss an appeal ground (or a review ground) in a migration case for lack of particularisation where, as here, the appellant … seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. In such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground …”
Walker & Page concerned the distribution of property between the parties. At first instance Sal made orders for the parties to indemnify each other in relation to a bank debt.
However, the only evidence of the outstanding debt to the bank came from the wife, who estimated it at $260,000 based on the anticipated sale of a property for $189,000.
The property remained unsold, so the debt to the bank had not “crystallised”.
As Ainslie-Wallace put it:
“… in the circumstances where the debt remaining to the bank had not crystallised, his Honour could not properly conclude that the proposed order for indemnification in context of the other orders rendered the result just and equitable.
To that extent, his Honour erred and the appeal must be allowed …
It is regrettable then that the only course is to set aside his Honour’s orders and remit the matter to be heard by another judge of the Federal Circuit Court.”
Costs certificates all around.
See: Walker & Page (No.2)
You’ll remember that it was Justinian’s melancholy duty in July to report that Federal Court judge Darryl Rangiah granted leave to appeal from Sal’s decision in Gambaro v Mobycom Mobile Pty Ltd.
Michael Gambaro is suing for unfair dismissal and drew the short straw by landing before Judge Sal. This was the instance where we found this exchange …
It went on in this, often incomprehensible, vein for some time, until Vasta asked security to remove the applicant form the court …
The application for Gambaro to file an amended statement of claim was not granted by Salvatore. The appeal grounds were that the appellant was denied procedural fairness and the primary judge erred in law and/or fact in removing him from the court.
The appeal was upheld, with Andrew Greenwood and Rangiah, finding:
“The extent and nature of the primary judge’s interventions went well beyond the legitimate ends of seeking to clarify, understand and test Mr Gambaro’s case. The primary judge’s interventions both undermined the proper presentation of Mr Gambaro’s case and represented such an egregious departure from the role of a judge presiding over an adversarial hearing that it unduly compromised his Honour’s capacity to objectively evaluate the evidence.”
[snip]
While displaying acute sensitivity to Mr Gambaro’s interruption, the primary judge appears to have had little insight into the effect of His Honour’s own interruptions upon the ability of Mr Gambaro to present his case.
The primary judge was frequently aggressive, rude and overbearing.”
As for the repeated threats of contempt, they were way out of line, quite apart from having no basis in law.
Someone else, who doesn’t shout, interrupt and threaten will have to rehear Gambaro’s interlocutory application.
Bring on a federal judicial commission asap.
There has been some good news for Sal. According to the Qld. Supreme Court registry the plaintiffs in a defamation case against one of Murdoch’s rags and Vasta have discontinued their proceedings against the judge as the second defendant.