Dranichnikov, Ex parte - Re MIMA & Ors B44/2001 [2002] HCATrans 659 (16 December 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B96 of 2000

B e t w e e n -

SERGEY DRANICHNIKOV

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Office of the Registry

Brisbane No B44 of 2001

In the matter of -

An application for Writs of Mandamus and Prohibition against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

SEAN STANLEY, DIMA Officer of the Onshore Protection Office, Sydney, NSW

Second Respondent

ANDREW THOMSON, Director of the Minister for Immigration and Multicultural Affairs, Onshore Refugee Program, Melbourne

Third Respondent

REFUGEE REVIEW TIRUBNAL, MELBOURNE

Fourth Respondent

GLEN ANDERSON, the Officer of the Department of Immigration, Compliance Section, Brisbane

Fifth Respondent

Ex parte -

SERGEY DRANICHNIKOV

Applicant/Prosecutor

Office of the Registry

Brisbane No B56 of 2002

In the matter of -

An application for Writs of Certiorari and Mandamus and Prohibition against MICHAEL BAUMANN, in his capacity as Federal Magistrate of the Federal Magistrates Court of Australia

Respondent

Ex parte -

OLGA DRANICHNIKOV

Applicant/Prosecutor

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 16 DECEMBER 2002, AT 11.03 AM

Copyright in the High Court of Australia

______________

MR S. DRANICHNIKOV appeared in person.

MR R.M. DERRINGTON: May it please your Honour. There are three matters before your Honour. I appear in B44 of 2001 for the first to fifth respondents. (instructed by the Australian Government Solicitor)

HIS HONOUR: Now, which one is that matter, Mr Derrington?

MR DERRINGTON: B44 is an application for mandamus, certiorari and prohibition.

HIS HONOUR: Yes, that is the one that has been referred to a Full Court to be heard concurrently with the special leave application.

MR DERRINGTON: That has, which is B96 of 2000, may it please your Honour, in which I appear for the respondent, the Minister for Immigration and Multicultural Affairs.

HIS HONOUR: What is the third matter, Mr Derrington?

MR DERRINGTON: The third matter, your Honour, is an application No B56 of 2002. It appears to be an application for orders nisi. The applicant in that matter is, I understand, Mrs Dranichnikov and the application is made against the first respondent, the Federal Magistrate, Mr Michael Baumann, and the second respondent, Mr Philip Ruddock, the Minister for Immigration, for which I appear, only the second

respondent in that matter. I do not have any instructions in relation to Mr Baumann. Thank you, your Honour.

HIS HONOUR: Thank you, Mr Derrington. Yes, Mr Dranichnikov.

MR DRANICHNIKOV: If it please your Honour, first of all I have an application under section 75 which I intended to file this morning in the Court Registry but the Registry wishes - - -

HIS HONOUR: You will have to speak up, Mr Dranichnikov.

MR DRANICHNIKOV: I am sorry, your Honour, I will try. This is actually application order nisi drafted for the.....against Deputy Registrar Ms Harris. I would like to give you the.....application and an affidavit in support of this application please.

HIS HONOUR: Now, let me just understand what you want to do. You want to commence a fresh application, another application in whose name, Mr Dranichnikov?

MR DRANICHNIKOV: Your Honour, if your Honour the Court pleases, I would like - this in relation to this matter because Ms Harris she actually did against the High Court Rules and by speeding process and imposing unqualified in the immigration matter barristers and lawyers and did not provide the interpreter because we requested interpreter for today's hearing.

HIS HONOUR: Let me just remind you, Mr Dranichnikov, as I understand it, your application for prerogative relief, that is under 75(v) of the Constitution, has been referred to a Full Court of the High Court to be heard at the same time as your application for special leave.

MR DRANICHNIKOV: Yes, that is right, your Honour.

HIS HONOUR: Now, those orders have already been made by a Full Court and I cannot make any different orders from the orders that the Full Court made. Now, as a result of those orders, there are certain things that have to be done, papers have to be filed to put the matter in proper form to be heard by the Full High Court and you will have to do that. Now, you want to introduce a third matter, do you?

MR DRANICHNIKOV: Your Honour, no, actually what we would like to do is we would ask the Court, if the Court pleases, and we can prepare documents, I mean draft appeal books and draft of index of appeal books in proper manner because your Honour might be know I am very concerned about appeal book in the Full Federal Court because it was prepared by the Registrar and it was not in proper manner even in try to appeal this decision to the High Court.

HIS HONOUR: Mr Dranichnikov, there is another matter that I should raise with you. I understand that you were given the opportunity of obtaining legal assistance and that two barristers were prepared to act for you. Is that so?

MR DRANICHNIKOV: Sorry, I did not catch your Honour?

HIS HONOUR: Were not two barristers prepared to act for you, to appear for you on an unpaid basis, on a pro bono basis?

MR DRANICHNIKOV: Actually, can you have a look please in this affidavit where is a letter which clarifies the issue with the barristers because this actually affidavit which says - thank you.

HIS HONOUR: What is the purpose of this affidavit?

MR DRANICHNIKOV: This actual affidavit because I envisage that Ms Harris speeding the process and did not send the appointment for settle the appeal paper and straight away refer it to your Honour, but in proper way should be prepared - - -

HIS HONOUR: I do not understand.

MR DRANICHNIKOV: Under Order 52 rule 17 of the High Court - - -

HIS HONOUR: No, no, please. Why have you not taken advantage of the offer which I understand was made by two barristers to appear for you on a pro bono basis?

MR DRANICHNIKOV: Yes, your Honour, I would like to explain this issue. First of all, the Full Court of the High Court ordered to send for a copy of transcript of 28 June to the Bar Association and we actually sent a letter, requested to the Bar Association asking help with assistance of pro bono schemes but we received a letter from the Bar Association. I would like to refer you to page 6, your Honour, on 6 July - - -

HIS HONOUR: Which page, Mr Dranichnikov?

MR DRANICHNIKOV: Page 6, please, your Honour, Annexure C. This is letter from 16 July to Bar Association of Queensland. So next page, Annexure D, I received letter from Bar Association. They sent actually my letter - - -

HIS HONOUR: No, no, it is not page 6 here. Page 6 here of the affidavit you have handed me up is headed "Court List, Federal Court of Australia, Queensland District Registry, Court List" - - -

MR DRANICHNIKOV: I think this is another affidavit your Honour. If you would like to see this one, please. Thank you.

HIS HONOUR: Has Mr Derrington got a copy of this?

MR DRANICHNIKOV: Actually, I.....copy and one copy left in the Registry.

HIS HONOUR: You cannot just address me on a document Mr Derrington does not have a copy of.

MR DRANICHNIKOV: Yes, I can give it, if you would like, but they are not respondents in this matter. It is just they clarifying this issue because the letter on page 6 I explaining that we requested pro bono scheme from Queensland Bar Association, page 6. But Annexure D on page 7 the Bar Association sent letter back and explaining that "unfortunately our records only shows two barristers that do immigration law, but they do not indicate that they do pro bono. Sorry we could not be any further assistance." They provided Mr Boccabella and Ms Angela Julian-Armitage so we can see that according to the High Court Full Court order in this case, the Registrar should forward transcript to New South Wales Bar Association not to another barristers who not indicate that they do immigration law, they not practise immigration law.

Second reason, when we asked their assistance in proposal amendments according to leave granted by the Full Court, they just disappeared and we could not catch them. We just rang them and even before there was a settled appointment. So in this case we can see that they acted not in our favour.

HIS HONOUR: All right, well that explains that. Mr Dranichnikov, what do you want me to do today?

MR DRANICHNIKOV: First of all, your Honour, we ask that this matter should be proper prepared for the hearing. First of all, we have proposed amendments and after these amendments will be settled, we would like to in proper manner to prepare index of appeal books and then appeal books.

HIS HONOUR: So you want to amend your application for special leave?

MR DRANICHNIKOV: Yes, that is right, your Honour, according to - - -

HIS HONOUR: I cannot make an order of that kind because I am only a single Judge and an order as to the conditions upon which the special leave application would be heard has been made by a Full Court of two Judges. I do not have power to undo an order that was made by two Judges. I am only one Judge.

MR DRANICHNIKOV: Your Honour, by the order on 20 - it is actually in affidavit if you would like to have a look - Annexure A, page 1 of this affidavit. The order in matter B44 and on the court orders on page 3 it says at paragraph 4:

Leave is reserved to the applicant to apply to a single Justice to amend or enlarge the grounds upon which he relies as he may be advised by his lawyer.

So the Full Court referred this question before single Judge.

HIS HONOUR: All right, but you have not been advised by a lawyer.

MR DRANICHNIKOV: Actually, your Honour, I should have my lawyer, not someone's lawyer who has not practised immigration law and second one, we have experience in legal matters and my wife actually was a lawyer and we sometimes can receive some advice if we are able to pay for it but actually it is very hard for us but we are trying to do our best and we prepared all amendments, and it is reasonable amendments under High Court Rules.

HIS HONOUR: All right. Is this a document - it is a notice of motion in B44 of 2001 and paragraph 1 of that on page 2 reads:

The applicant seeks to amend and enlarge the grounds -

is that the document that you wish to draw to my attention?

MR DRANICHNIKOV: Actually, we filed, your Honour, the documents - we amended notice of motion, we filed documents on 13 December. These documents are actually what we want to consider. We would like to consider this. It is amended notice of motion in B96, then amended application for special leave to appeal, B96.

HIS HONOUR: All right. The two notices I have, Mr Dranichnikov, show the filing date of 29 November.

MR DERRINGTON: I can assist, your Honour, perhaps. Last week I think we were served with amended notices of motion. They are dated 13 December.

HIS HONOUR: 3 December?

MR DERRINGTON: 13 December 2002.

HIS HONOUR: They do not seem to have reached me.

MR DERRINGTON: I can hand your Honour our copies, which we might get back from your Honour.

HIS HONOUR: Did you file these, Mr Dranichnikov?

MR DRANICHNIKOV: Sorry, your Honour.

HIS HONOUR: Have these been filed?

MR DRANICHNIKOV: Yes, that is right, they were filed here in High Court Registry.

HIS HONOUR: All right, so they have been filed and you want me to look at B96 of 2000, is that right, first?

MR DRANICHNIKOV: Yes, two matter. B96 of 2000 case, three new documents - this is amended notice of motion, amended application for special leave and amended draft notice of appeal, of all documents filed and served on 13 December. Also, I have notice of motion, fresh notice of motion in the second matter, B44, also the same day, 13 December, with amended grounds. I would like to ask you, your Honour, to consider these grounds in document.

HIS HONOUR: All right, you can give these back to Mr Derrington. Yes, these have been located.

MR DRANICHNIKOV: And also the document I rely upon in the affidavit in support - - -

HIS HONOUR: Let us deal with B96 of 2000 first and see exactly what you are trying to do there.

MR DRANICHNIKOV: Thank you.

HIS HONOUR: All right. Now, Mr Dranichnikov, I am looking at B96 of 2000 and your amended application for special leave to appeal and I am looking at your ground 1 first, do you see that?

MR DRANICHNIKOV: Yes, your Honour.

HIS HONOUR: That seems to be an attempt by you to reflect as best you can the order No 1 that was made by the Full Court, is that right?

MR DRANICHNIKOV: Yes, that is right. I repeat this ground because - - -

HIS HONOUR: That was the ground that the Full Court said you can - - -

MR DRANICHNIKOV: Yes, amended application.

HIS HONOUR: Do you have a copy of the order in No B96 of 2000? That was the order that was made on 4 July.

MR DRANICHNIKOV: Yes, I have this order in this affidavit which I have handed today.

HIS HONOUR: Look at the order, Mr Dranichnikov - - -

MR DRANICHNIKOV: I have it. B96, you say.

HIS HONOUR: You will see that order No 2 that was made by the court was that "Otherwise", that is, except for the ground that the court has stated for you, your application was dismissed. The effect of that order as I read it is that you are only entitled to rely upon one ground, otherwise your application has been dismissed.

MR DRANICHNIKOV: Yes, your Honour, but the Full Court order actually next ordered that "Leave is reserved".

HIS HONOUR: Yes, I saw that, but I read that as to mean "to amend or enlarge the draft grounds of appeal" in accordance with order 1, otherwise order 2 would not make any sense.

MR DRANICHNIKOV: Actually, the Full Court referred this ground to the Full Court for arguing but they actually provide leave reserved for amended grounds and before single Judge.

HIS HONOUR: Yes, but amended in terms that would reflect or would produce a ground that was substantially in the form that is set out in ground No 1.

MR DRANICHNIKOV: It would not make sense to make leave to enlarge grounds in this way, your Honour, I think - amend grounds.

HIS HONOUR: I think it still does, Mr Dranichnikov.

MR DRANICHNIKOV: I have strong grounds, your Honour, and I can refer to affidavit in support of notice of motion which actually been before the Department of Immigration and.....Tribunal - the actual political opinion and also fail of State to protect person - so this is reasonable grounds the High Court could consider - and also fear of persecution.

HIS HONOUR: I will just hear from Mr Derrington. What do you say Mr Derrington, about that?

MR DERRINGTON: Your Honour, I might be able to assist you by handing up an outline of submissions.

HIS HONOUR: Just tell me about this first, please.

MR DERRINGTON: Can I tell you there are three things. In relation to this, the transcript of appearances before their Honours Justices Gaudron and Gummow, were that their Honours - - -

HIS HONOUR: You can sit down for the moment, Mr Dranichnikov.

MR DERRINGTON: - - - as your Honour rightly pointed out, dismissed both the order nisi and the application for special leave other than the specifically narrow identified ground identified by their Honours. Their Honours then did make some orders in relation to approaching the Bar Association for someone who would act for the Dranichnikovs on a pro bono basis and it is within that context that their Honours indicated that they would grant leave to enlarge the grounds, but only on the basis that such enlargement was advised by the lawyers, being the lawyer who the Dranichnikovs obtained for the purposes of widening the grounds.

Can I add, your Honour, also, that one of the problems is every ground now sought to be agitated or included in the order nisi and application for special leave were disposed of by Justices Gaudron and Gummow.

HIS HONOUR: Are they the same?

MR DERRINGTON: They are the same.

HIS HONOUR: Are they identical, Mr Derrington?

MR DERRINGTON: Identical - it is impossible for me to say they are identical but they are, in substance, identical to ones which have gone previously.

MRS DRANICHNIKOV: Your Honour - - -

HIS HONOUR: No, you will get an opportunity. I am hearing from Mr Derrington at the moment.

MR DERRINGTON: In my outline as best I can I have tried to identify in a short respect where they have appeared previously.

Your Honour, the fourth point we would raise is that whilst leave might have - no, I will not press that fourth point.

So they are the big points. That is that they have already been disposed of and if they have leave to enlarge the grounds it is only on the advice of a lawyer which they retain. Mrs Dranichnikov is not a lawyer in Australia or within the term of their Honours' order.

HIS HONOUR: Let us have a look at this new notice of motion, B96 of 2000. Ground (2), that does not raise any different matter than what ground (1) raises. There was either a Convention reason or there was not. That is right, is it not, in so far as you can make out what is - - -

MR DERRINGTON: It was agitated below and previously that political - - -

HIS HONOUR: The Convention reason is the reason that they set out in (1), if it is a Convention reason.

MR DERRINGTON: Indeed, and that is the one identified by their Honours Justices Gaudron and Gummow.

HIS HONOUR: If you look at (3), if there is a good Convention reason, then obviously they are not being protected by their home State in relation to that Convention reason, so that does not raise any new matter.

Ground (4), was that a ground in the special leave application, Mr Derrington?

MR DERRINGTON: That is hard, your Honour, because it is hard to understand exactly what it means but it seems that we identified that it was alleged previously where "there was a breach of the rules of natural justice and procedural fairness" or - which was referred to before - "breach of the rules of natural justice and procedural fairness was denied consideration by the Federal Court", they are two paragraphs of Mr Dranichnikov's previous affidavit, so they are the same because we apprehend that is what they were talking about. Mind you, item (4) just simply is not a ground because it does not set out any particulars. If that were allowed a ground, they could trawl through many - 15 volumes I think was the amount of material before Justices Gummow and Gaudron.

HIS HONOUR: And the same in relation to (5). What about (6)?

The Full Court failed to hold that the Tribunal erred in law by failure to consider the fact that the applicant's wife has a well-founded fear of persecution based on a political opinion -

what about that?

MR DERRINGTON: Paragraph 55 of the affidavit of Mr Dranichnikov at the time was to the effect that whether "the Tribunal failed in not considering the second submission of the applicant and separate submission of applicant wife with the second application for review of the decision of the delegate of the Minister affirmed by the RRT in light of fresh information." That seemed in context to relate to that. Also, paragraph 67, "DIMA failed to give any weight to the facts pointed to in applicant's PB application that the applicant's wife, Olga Dranichnikov, had her own refugee claims." That is paragraph 67 of Mr Dranichnikov's affidavit.

HIS HONOUR: What has happened? Has she made a separate application?

MR DERRINGTON: She has, indeed, your Honour, and it has been dealt with and she appealed to - - -

MR DRANICHNIKOV: I think, if your Honour pleases, can Olga, she is an applicant in this matter previously and she could explain the very situation.

HIS HONOUR: All right.

MRS DRANICHNIKOV: Thank you, your Honour. It is actually amended grounds for the special leave application in the matter B96 to file them and to refer to your Honour to paragraph (6):

The Full Court failed to hold that the Tribunal erred in law by failure to consider the fact that applicant's wife has a well-founded fear of persecution based on her political opinion and membership to social group - lawyers in Russia.

HIS HONOUR: Yes.

MRS DRANICHNIKOV: Your Honour, I was obstructed since 1997 from applying my application for refugee in my own right - - -

HIS HONOUR: Have you made an application?

MRS DRANICHNIKOV: I merely was included in the family member of my husband and Full Federal Court in 2001 held that I should not be obstructed from applying my own application with my own refugee claims for determination under the Refugee Convention but the Minister appealed the decision to the High Court against unanimous Full Court decision. At the same time the Minister started to promote new amendments, this purpose to obstruct all members, family units, most of them women, from determination for refugee status in their own right, so I never did make any application, I was just obstructed. In the RRT, at the hearing I stated that I have my own refugee claim, I was persecuted by my own reasons. At the hearing in the Tribunal I was recognised as an applicant but in the decision in RRT Tribunal I was admitted as a credible witness, as a wife of the applicant for protection visa, so the Tribunal failed to consider my own claims and that he referred for me only as a wife.

Actually, your Honour, I ask the court to join both matter because my matter for special leave to appeal now before the High Court, but the Minister sends a letter to me that my status, my visa, will depend upon my husband's visa litigation. When my husband's litigation will end I will put into the detention centre, so I would like to join both case because under the High Court Rules a husband and wife and all reasons of course can be joined and I ask you because it is a matter of life and death because I would be prevented from pursuing my application in the High Court.

Actually, your Honour, the Minister for Immigration, after filing my notice of motion to strike out ministerial application for special leave to appeal because of his contradictory statement in Parliament. In the High Court application the Minister discontinued his appeal.

HIS HONOUR: Thank you. What do you understand to be the position?

MR DERRINGTON: In relation to that, may it please, your Honour, the point was that Mrs Dranichnikov sought to make her own application. It was refused on the basis that she had already made an application for a protection visa being part of the family unit of Mr Dranichnikov.

HIS HONOUR: Is that right?

MR DERRINGTON: That was overturned, eventually, by the Full Court, and she then had made her own application. She has been allowed to make the application.

MRS DRANICHNIKOV: No.

MR DERRINGTON: However, she has refused to pay the required fee and I think it now void but that is a matter that will be dealt with otherwise. On the other hand, it is completely - - -

HIS HONOUR: There would be nothing to stop her from making an application now, would there, assuming she could find - what is the fee, by the way?

MR DERRINGTON: $30. She could not make another application now.

HIS HONOUR: Why not?

MRS DRANICHNIKOV: Could I explain, your Honour?

HIS HONOUR: No, please, wait a moment.

MR DERRINGTON: The Act has been amended and she could not make a second application for a protection visa. There was a section - - -

HIS HONOUR: So, what, her application has been treated as void because she never paid the fee?

MR DERRINGTON: Yes. I think extensions were given for time and letters sent requesting her to pay a fee but she refused and as a result it is now, I think, I understand is treated by - can I say, a matter wholly irrelevant to Mr Dranichnikov's application on either the order nisi or the application for special leave, Mrs Dranichnikov's personal application.

HIS HONOUR: You say that, Mr Derrington, but it sounds as if the Minister may have erroneously treated the matters as being related.

MR DERRINGTON: Your Honour, what happened was Mr Dranichnikov made - - -

HIS HONOUR: The Federal Court made an order against the Minister, is that right?

MR DERRINGTON: Yes, the Full Court of the Federal Court in a separate action, in a separate action by Mrs Dranichnikov when the department refused to allow her to make an application in her own name.

HIS HONOUR: I do not understand how they could possibly prevent her from - obviously the Full Federal Court thought the same thing.

MR DERRINGTON: Not at first instance because the provisions provided an applicant for a protection visa could not make a second application and because she was included on Mr Dranichnikov's primary application - - -

HIS HONOUR: But did she sign the application?

MR DERRINGTON: Yes, she did, and your Honour might have heard Mrs Dranichnikov said before the RRT she agitated her own claim for a protection visa based on her own political opinion. The Full Court of the Federal Court said she has not, that in fact that did not occur because she never made an application in the first place, she has not made in her own name an application for protection visa status.

HIS HONOUR: Thank you.

MR DERRINGTON: It is a separate proceeding.

HIS HONOUR: Thank you, Mr Derrington. I thought that the Bar Association had made available to you two barristers, Mr McMurdo and Mr Katter Did you have a conference with them?

MRS DRANICHNIKOV: Your Honour - - -

HIS HONOUR: Did you have a conference with them, please?

MRS DRANICHNIKOV: We had one conference with Mr Katter and after that visit we provided a lot of documents. Before the notice of the proposed amendments we sent a lot of documents in support of our amendments but Mr Katter, although he appointed me appointment but he was away to Sydney and Canberra for a couple of weeks. We could not reach them.

I sent all documents explaining that he cannot find Mr Katter to Mr McMurdo. He sent letter, his documents, his confirmation, and ask and plead with Mr McMurdo to give advice concerning our amendments but he failed to do that. He actually made advice but he referred to old documents. We did not provide to him old documents and this notice of motion for proposed amendments was listed by Ms Harris in two days before today. My husband working full time at a factory. I am working two days also. I have got poor medical condition and we would like to ask your Honour to listen, to have hearing notice of motion of proposed amendments which - - -

HIS HONOUR: Mrs Dranichnikov, you are a lawyer yourself you say?

MRS DRANICHNIKOV: I was worked as a lawyer.

HIS HONOUR: You worked as a lawyer in Russia?

MRS DRANICHNIKOV: Yes.

HIS HONOUR: Now, you would know then as a lawyer that documents have to be presented in a proper form and that there are special legal forms that have to be complied with. You would understand as a lawyer that unless you have an Australian lawyer to help you, you are at a very serious disadvantage. Your documents are quite inadequate in the form that they are now. They do not have particulars where they should have particulars; it is not clear to me which of your claims have already been dealt with and dismissed by the Court. The form that your documents are in is such that it would be very, very difficult for me to make any order in relation to them.

MRS DRANICHNIKOV: Yes, I see, your Honour. I understand, your Honour.

HIS HONOUR: But I want to give you every opportunity, you understand?

MRS DRANICHNIKOV: Yes, thank you very much, we really appreciate this opportunity, but - - -

HIS HONOUR: But I find it very difficult to deal with these, you see, because - - -

MRS DRANICHNIKOV: But maybe to refer to New South Wales Bar Association, as it was directed by the Full Court, because Mr McMurdo and Mr Katter, they are not practise in immigration law and they show that they are not acting in our interests.

HIS HONOUR: They probably know more about it than you do, Mrs Dranichnikov. I mean, it is an Australian statute, an Australia Act of Parliament. You do not have to be particularly an immigration lawyer to do that, to understand that, but you do need to be a lawyer. It sometimes happens that people - and I am not saying this is necessarily your position - but it sometimes happens that people do not like the advice that they receive from lawyers because lawyers sometimes tell them that they cannot do things. You would understand that as a lawyer yourself.

MRS DRANICHNIKOV: We understand that, yes.

HIS HONOUR: You would have had clients who did not like to hear your advice when it was "no".

MRS DRANICHNIKOV: But this is not the case, this is not our case and we put in our affidavit before you the correspondence we have with Mr McMurdo. He said Mr Katter could not - I can show you, I can - - -

HIS HONOUR: I should look at that. This is your affidavit.

MRS DRANICHNIKOV: Yes, affidavit, yes.

HIS HONOUR: Now, let me look at that.

MRS DRANICHNIKOV: It is actually page 23, your Honour, Annexure O, page 23.

HIS HONOUR: Page 23, yes, I see that.

MRS DRANICHNIKOV: Yes, and actually after numerous attempts - - -

HIS HONOUR: This is your letter to Mr McMurdo, is it? Let me just read this, Mrs Dranichnikov.

MRS DRANICHNIKOV: Thank you, your Honour.

HIS HONOUR: You refer to - you say "Mr McMurdo's letter of 26 November". Where do I find that? Where do I find Mr McMurdo's letter of 26 November?

MRS DRANICHNIKOV: The 26^th, I will show you, yes, I will show you. We send a letter is - - -

HIS HONOUR: Is that in here, Mrs Dranichnikov?

MRS DRANICHNIKOV: Not in affidavit because we just receiving listing for that matter only two days ago, yes. We have got letter if your Honour - 26 - we sent by fax and this confirmation notice.

HIS HONOUR: No. I see, yes, all right.

MRS DRANICHNIKOV: Because we were desperate to seek advice from them but we did not receive. How can we contact them?

HIS HONOUR: No, there must have been a letter from Mr McMurdo of 11 December too. Is that in here?

MRS DRANICHNIKOV: We did not hear from you and Mr Katter until 11 December.

HIS HONOUR: You see, the letter on page 23, which is your letter to Mr McMurdo, at the foot of that page you say:

Therefore, we envisage that your advice given in your yesterday's letter has no relevancy to the proposed amendments.

So, Mr McMurdo must have given you a letter of advice.

MRS DRANICHNIKOV: It was advice completely irrelevant and next page Mr McMurdo he admitted that, page 25, your Honour.

HIS HONOUR: Yes, yes.

MRS DRANICHNIKOV: "Thank you for your facsimile this morning. I am sorry if that has been a misunderstanding on our part." But it was clearly - - -

HIS HONOUR: All right, Mr McMurdo on 12 December said:

Would you please send to me by return fax copies of what you sent to the High Court on 29 November - - -

MRS DRANICHNIKOV: But, your Honour, amended application and all documents was already prepared because we have listing this matter for Monday, for today. Today is 16 December.

HIS HONOUR: Let me just sort this out. Did you respond to Mr McMurdo's letter as he requested you to do?

MRS DRANICHNIKOV: No, because we have no time. We are preparing documents before the Court.

MR DRANICHNIKOV: Your Honour, can I explain?

HIS HONOUR: No, no, wait a moment, Mr Dranichnikov. I can only deal with one person at a time.

Mrs Dranichnikov, so Mr McMurdo writes to you or sends you a fax on 12 December which is last Thursday or Friday, was it, which day was it?

MRS DRANICHNIKOV: Thursday.

HIS HONOUR: Last Thursday. Did you respond to his letter of 12 December?

MRS DRANICHNIKOV: I responded. I said it is too late because all documents are prepared for filing before the notice of motion which was listed for today. There was no sense to seek this advice. They just disappeared. We actually had conference on 8 October and since that they did nothing. We pleaded to them, we ask them - - -

HIS HONOUR: No, please, please wait a moment. So Mr McMurdo invited you to send the documents to him on 12 December and you chose not to do that.

MRS DRANICHNIKOV: Actually, Mr McMurdo sent his advice completely the same as it was sent by his misunderstanding.

HIS HONOUR: Did you send anything to Mr McMurdo on or after 12 December?

MRS DRANICHNIKOV: No, because my husband was work - yes, we send the letters, yes.

HIS HONOUR: You sent something?

MRS DRANICHNIKOV: Yes, we sent letters to him.

HIS HONOUR: Right, what day did you send them to Mr McMurdo? What day did you respond to Mr McMurdo's letter to you on 12 December?

MRS DRANICHNIKOV: I responding twice in a day. Just a moment, I will - - -

MR DRANICHNIKOV: Can I be of assistance - - -

HIS HONOUR: No, you are not being of assistance. I will give you an opportunity to speak in a moment. One person at a time, Mr Dranichnikov, please.

MRS DRANICHNIKOV: It is actually, yes, I sent to him letter dated on 13 December.

HIS HONOUR: Where do I find - is that in here, Mrs Dranichnikov?

MRS DRANICHNIKOV: No. Your Honour, we have no time to prepare.

HIS HONOUR: That is right, I am just trying to find out what happened.

MRS DRANICHNIKOV: I have got letter, I can read it for you. I said that:

I refer to your facsimile on 12 December and on 26 November I have sent you by facsimile a letter the proposed amendments of grounds in relation to the above matters.

In this case I have some concerns in relation to your memorandum of advice dated 11 December which is irrelevant to the matters. I would like to notify you that I am not giving you any authorisation to represent my case in the Court.

That is it because his advice, new advice, was completely the same as he made all the old documents. So how can you trust, your Honour, in our matter - - -

HIS HONOUR: You do not want to take his advice.

MRS DRANICHNIKOV: Sorry?

HIS HONOUR: You do not like his advice.

MRS DRANICHNIKOV: No, it was too late because documents was prepared. Documents before you, before this Court, before the notice of motion listed on Monday, on today, was filed already on Friday. Your Honour, can you understand that?

HIS HONOUR: Yes, I can understand that you did not like his advice.

MRS DRANICHNIKOV: Because he proved that they are not acting in our interests. We asked them to have contact with us, to have an appointment to discuss our matters, but they failed to do that, they just hiding. I called numerous times. I have got all my writings. I called with purpose to achieve them. Your Honour, maybe I am over-reactive but in Australia we had a very sad experience. You know, I do not trust them because they have discussions and correspondence between the Deputy Registrar, Elisa Harris, and them - - -

HIS HONOUR: Mrs Dranichnikov, Mr McMurdo is a counsel of the highest possible reputation.

MRS DRANICHNIKOV: Yes, I see.

HIS HONOUR: Mr McMurdo is a thoroughly ethical, very good, highly reputable counsel and, without some evidence, I am not going to allow you to slander his reputation in open court.

MRS DRANICHNIKOV: I am not going to slander anyone but, unfortunately, in our case, these barristers they did not prove to act in our interests. By this correspondence - - -

HIS HONOUR: Are you not only saying that because you did not like their advice?

MRS DRANICHNIKOV: Sorry?

HIS HONOUR: You just did not like the advice they gave you.

MRS DRANICHNIKOV: No, it was too late. It was too late, first of all, and they failed to do that at proper time, when we need to make proposed amendments before you, before a single Judge. This notice of motion was listed before two days and on 12 December all documents were - had been prepared.

HIS HONOUR: How do you know that Mr McMurdo would not have been prepared to appear today?

MRS DRANICHNIKOV: Sorry?

HIS HONOUR: Mr McMurdo did not say that he would not appear for you today. You chose to dismiss him.

MRS DRANICHNIKOV: Because we do not trust him.

MR DRANICHNIKOV: Can I explain, your Honour?

HIS HONOUR: Yes, do you want to say something? I will hear Mr Dranichnikov now.

MR DRANICHNIKOV: Yes, please. Actually, your Honour, in my understanding, I think reasonable every barrister would fulfil instruction of his client and everybody still would happy to amend or enlarge grounds because of chance of success before the Court. I think you understand this. We never had discussion with Mr McMurdo. Second one, he should not prepare for today's hearing because he did not want to prepare, he indicated in his advice. So we understand that he is acting against - I appreciate he might be desire to help us but we looking for facts and facts are stubborn things. We can see that he is not acting on our behalf and did not want to fulfil our instructions. If this is pro bono scheme, it does not mean that he should act against us, not on our behalf.

HIS HONOUR: It is not acting against you. I do not know how often I have to tell you that.

MR DRANICHNIKOV: Our instruction is - you can see before you, your Honour, if you pleases, you can see amended notices of motion and documents we would like Court to move to consider these documents to amend and enlarge in accordance with order of the Full Court and we trying to make all the best what we can do. But if the lawyer - barrister failed to do it, it is his choice. He said, "If you like, you do it yourself" in his advice and we do it, that is it, it is simple, it is life.

HIS HONOUR: Do you want to say anything more?

MR DRANICHNIKOV: Actually, the order of the Full Court is clear. If there is no barristers in Queensland, refer it to New South Wales. If not, we will present it ourselves, it is our life and death, we have no choice, your Honour. You should understand this.

HIS HONOUR: All right. Nothing further then?

MR DRANICHNIKOV: I think we have this ex parte application against Ms Harris and we would like to - this is actually referring to this matter because what she failed to do list here in notice of motion for proposed amendments for the Full Court and provide because she said it is for mention only and I would presume that Mr McMurdo said "I have nothing to say to the Court" because he said that - should be hearing, that is it, you have one ground. We would like to have more because of chance of success and this is reasonable questions before the Court, your Honour. We have an affidavit in support of notice of motion which all documents approves that this real connection and real grounds, your Honour, and we would like you to consider it.

HIS HONOUR: The grounds are not properly stated, I have tried to tell you that. Your grounds are not in a form which is sufficiently different from the form of the grounds which was before the Full Court.

MR DRANICHNIKOV: For example, No 5, your Honour, in my amended notice of motion in B96 filed on 13 December. This is actually functus officio principle. The Refugee Review Tribunal invited me to lodge the second application after their decision was held so - and I have done it and sent a lot of information additional and they did accept this application. They provided me with letter that they received my documents and they are going to consider it and they actually - in five months they refused, they could not do it; but last matter before High Court actually approved that Minister actually lost the case because Tribunal can consider second application and its own decision because this is administrative body and they should look at it, not damage the reputation of the courts. They just try to send all matters to the court, but they should consider themselves.

In this matter, in the High Court Bhardwaj, and it happened the same, exactly to us. So we applied second time and they refused but they received a lot of information, they should consider all this information because they failed to accept this information at the hearing and they in this case, they invited us to make a second application and my wife and I we have made submission.

Actually, your Honour, this is affidavit in support of notice of motion has documents approved these questions. This is real question of law. This is second application to Tribunal, page 67, of my affidavit sworn on 29 November, Annexure C1. So this application was made on 8 September 1998. I would like to refer your Honour, please, page 67 of this affidavit. This is second application to the RRT. On page 69 reason for making this application. Page 73, sorry, your Honour, 8 September, Tribunal sent me letter that they received this application and going to consider it and invited to provide fresh information. So then, page 75, we send letter with another documents on page 76 and in another submission, detailed submission, page 77, I think, to 97.

Then my wife sent submission on 29 September and another documents in support of our claim. That information should be considered because it is before Tribunal. As I said, this matter before the High Court, their decision not functus officio. We should consider all information in second application. They failed to perform their function.

I think this is new actually ground and I think it is very important to us because it would help us to win the case and refer matter to the Tribunal again to consider all the information, your Honour, if the Court pleases.

Another is "protection of the country". My first statement to the department I write then that the State did not protect me because the police refused to investigate the matter after attempt on my life, your Honour, and they even threatened me. I had to sign the letter closing the investigation. Unfortunately it is Russia, your Honour, it is not Australia. Then officer of the police said to me, "Be happy with your life, go away from the department. Where can I find the truth, your Honour? This is protection? This is not protection, your Honour. This is ground under Convention. .....before High Court, approved this. Harm for us - serious harm because I was nearly killed plus lack of protection.

Another point in my application: my wife was included as a member of family unit but she indicated in Part B that she has her own claim for political opinion but the department sent letter to wrong address and refused then did not receive but they should follow instructions. They should follow their procedure. They should be able to find the applicant and invite - send new information, is it not true? In support of - they should requested Olga, her claim because she - I just like to refer to page - this is Annexure A1, your Honour, on page 11. This is last page of the Part B application for protection visa and it says that applicant to answer and sign, "Do you have your own claim to be refugee?" My wife said "Yes", and signed, but department did not want to consider because she is a lawyer. She could have - under section 54 they should have regard to all own information....., your Honour.

And under gender guidelines they should invite the woman who was included in application to consider all - this is very important case, your Honour. Actually, in last matter, I think, Bakhtiyari wife, what the respondent doing. In her case they.....they used the principle family unit against her. They said, "You should apply in your own right. Your husband refugee but you should apply in your right". In my wife they apply differently. They say, "You include it in your husband, you shouldn't apply because you are wife, because you.....because you are not allowed to do it".

Another thing, they agree - they said clear this is discrimination because if man has treated this law in this way this is discrimination against members, not against the applicants - against woman. They expressed it.....category of people.

Olga was obstructed. We were obstructed from the beginning. They doing what they want. Relevant information, no, irrelevant, you are businessman, you are just criminal activities. Also reasons.....I suffered because of political opinion. Why I should not put political opinion, because in my first statement to the department - it is page 18 in my affidavit, your Honour. Would you please have a look at page 18? This is actually annexure to my initial application to the department. Page 18 and in letter paragraph - not last paragraph, before that, it is last sentence before - second sentence from the end says:

I openly criticised the work of the law authorities at meetings and organised protest gatherings. I could not stay uninvolved, when people were killed, and no one was punished for it.

And next page:

My only possible "crime" that I spoke openly and directly against unlawfulness of security authorities.

They did not decide to protect me, what I should do? Should stay? It was proved in the Chan Case in the High Court because political opinion could constitute Convention ground even they found acceptance of any social group. But in our case different matter. We worked in legal company. My wife was a lawyer, I was a manager of company, and we were dealing with government every day and the authorities. We provided legal advice. Could I have political opinion? I had political opinion.....

Actually, handbook on "Procedures and Criteria for Determining Refugee Status". It says:

Political Opinion.

80. Holding political opinions different from those of the Government is not in itself a ground for claiming refugee status, and an applicant must show that he has a fear of persecution -

I was nearly killed, your Honour,..... -

fear of persecution for holding such opinions. This presupposes that the applicant holds opinion not tolerated by the authorities, which are critical of their policies or methods.

Criticising law enforcement - tolerate or not. This is not tolerated. Actually this is approved in precedents in.....and in other precedents it says that even lack of protection, even crime, but in mine I was persecuted by political opinion and also we proposed that it was attempt on my wife because she was a lawyer also and we explain it before Tribunal.

Actually, in the matter C and S v Minister for Immigration in Federal Court of Australia, but it refers actually this matter to the High Court, submission about political opinion and it says:

Davies J held that it is open to the Tribunal to hold that Y's fear of persecution was by reason of his political opinion. At 4-5 he said:

"In the context of Refugees' Convention, an opinion could be thought to be a political opinion if it were such as to indicate that its holder, the claimant for refugee status, held views which were contrary to the interests of the State, including the authorities of the State. A person may be regarded as an enemy of the State by virtue of holding and propounding views which are contrary to the views of the State or its Government, or which are antithetic to the Government and the instruments which enforce the power of the State, such as the Armed Forces, Security Forces and Police Forces or which express opposition to matters such as the structure of the State or the territory occupied by it and like matters."

So if I criticise law authority, this is political opinion according to this precedent, according to expression of Justice Davies in the meaning of the Convention. It is very strong and important grounds, your Honour, and depriving of - paragraph (12) in my proposed amendments B96, depriving of bridging visa E of Department of Immigration, of respondent.

HIS HONOUR: Right. Anything further, Mr Dranichnikov?

MR DRANICHNIKOV: Yes, I have, your Honour,....ground. I have - this is an affidavit in support of amended notice of motion and this also in support of all my documents, amended application for special leave and amended draft of notice of motion or a draft of notice of appeal before the Court. Also this is a notice of motion filed and held in matter B44. So this all documents, this support of affidavit filed on 29 November.

I would also like to refer your Honour please on the ground (4) in the amended notice of motion in B96. It says:

The Full Court erred by not taking into account that the Tribunal took into consideration irrelevant information, and did not take into account relevant information.

So we can see that Tribunal fell into jurisdictional error because they did not take relevant information which I read before, your Honour, in my submission which I sent with my initial application to the Tribunal. Actually, I would like to provide detailed submission be filed, applicant's list of authorities for both matters which were....., your Honour.

HIS HONOUR: Yes, thank you.

MR DRANICHNIKOV: This is concerning proposed amendments and I provided this.....already. Of course we have not much time but we did our best what we can for these two days, your Honour, because we received only this letter from High Court Registry, Ms Harris, only on, I think, Thursday and we had not much time for preparation but we did our best in the night time. So I like to ask, if the Court pleases, to consider these amendments now or refer it to the Full Court for final consideration and make orders that the matter could be joined together because it is of public importance, this concerning many, many people - refugee - and particularly members of family unit - women - who are discriminated on their marital status.

The matter - Olga's - will approve this in the High Court, matter 56 which is our current matter for special leave to appeal. Also I would like to ask you a direction that the index of appeal book should be settled in accordance with High Court Registry, settle appointment for then I could get opportunity to file draft of index and prepare books in proper manner, not like before the Full Court of the Federal Court, but like.....of the High Court. Thank you.

HIS HONOUR: Thank you, Mr Dranichnikov. Mr Derrington, do you happen to have a copy of the decision of the Full Federal Court in Mrs Dranichnikov's application?

MR DERRINGTON: Mr Dranichnikov?

HIS HONOUR: I am sorry, Mrs Dranichnikov.

MR DERRINGTON: No, I am sorry, your Honour, to the best of my recollection.

HIS HONOUR: I am concerned about her position. Her application was refused by the Tribunal, is that right?

MR DERRINGTON: No, it has never been to the Tribunal, your Honour. It has never been - - -

HIS HONOUR: All right, well, refused by the Minister on the basis that she was a member of a family unit and that was covered by her husband's application.

MR DERRINGTON: Correct.

HIS HONOUR: I may not be stating it exactly. So then how did she get to the Federal Court?

MR DERRINGTON: She appealed - a refusal - - -

HIS HONOUR: Does it not have to go to either - the Minister just rejected the application so she sought prerogative relief against the Minister in the Federal Court, did she?

MR DERRINGTON: I am not sure how it got there.

HIS HONOUR: Because there is no appeal from the - - -

MRS DRANICHNIKOV: Can I - - -

HIS HONOUR: No, please - - -

MR DERRINGTON: There was an application to the Federal Court and it came on before his Honour Justice Dowsett. It was a judicial - I am sorry. The refusal to make a determination on Mrs Dranichnikov's application was a judicially reviewable decision at that time and - - -

HIS HONOUR: Right, so it was under the AD(JR) Act, was it?

MR DERRINGTON: It would have been under the Migration Act, your Honour.

HIS HONOUR: Right. So, there was no intermediate application to the Tribunal?

MR DERRINGTON: Quite, because it had not been dealt with, and an application was made to Mr Justice Dowsett who dismissed the application and that was appealed to the Full Court of the Federal Court and that appeal was allowed.

HIS HONOUR: So that the Minister was then obliged to consider her application?

MR DERRINGTON: Exactly so.

HIS HONOUR: He considered it and rejected it?

MR DERRINGTON: No, it has not yet been considered because it was determined that she was entitled to make an application for the protection visa in her own name.

HIS HONOUR: To the Minister?

MR DERRINGTON: To the Minister.

HIS HONOUR: Yes.

MR DERRINGTON: That is only an entitlement to do so under the legislation and the legislation and its regulations provide for the payment of a prescribed fee and there have been numerous amounts of correspondence between the parties for the payment of the fee to make the application and apparently it has not been done, on my instructions.

HIS HONOUR: Why have you not made your application, Mrs Dranichnikov?

MRS DRANICHNIKOV: First of all, your Honour, the Minister at the time of his special leave to appeal started to promote a new Immigration Legislation Bill No 6/2001 amendments with - - -

HIS HONOUR: No, no, look, please, why did you not make an application as soon as the Full Federal Court said you could, which was back on 22 June last year?

MRS DRANICHNIKOV: Yes, yes. They sent me - actually the money order which I applied with my initial application, money order was returned a few times to me back when I applied my application on 11 August 2000 in my own right. I was invited by the Minister to put my application in my own right after amendments in the section 36. Section 36, after amendments, clearly says if husband or main applicant will be recognised as a refugee, other members - - -

HIS HONOUR: Other members of the family unit will - - -

MRS DRANICHNIKOV: Yes. I send the letter by registered post and explained, first of all, I do not like to abuse determination process. I believe that my husband is a genuine refugee. So can I ask you to await the determination of my husband's status because I am involved in preparation of the documents and also I have a poor medical condition and I send a lot of medical reports that I have no energy to undergo this determination. But a few weeks ago they said to me that I have no right because the Minister - that new law says that I will be obstructed. I have no right any more to be determined in my own right. But by clause 866, the criteria for protection visa, I never satisfy the criteria for protection visa because it clearly says even member of family units should apply the refugee application in his or her own right.

HIS HONOUR: All right, thank you, Mrs Dranichnikov. Mr Derrington, just remind me, what is the third matter I have before me today?

MR DERRINGTON: The third matter is an application by Mrs Dranichnikov and, I understand, Mr Dranichnikov, to join with the hearing of Mr Dranichnikov's matters an application by Mrs Dranichnikov for prerogative relief against Mr Michael Baumann and the Minister. That relates to a hearing before Mr Baumann and my learned instructing solicitor reminds me that that was an application under the HREOC Act, the Human Rights and whatever it is. I am sorry, your Honour.

HIS HONOUR: HREOC, yes.

MR DERRINGTON: Yes, and the application was in relation to discrimination in relation to making of applications and there is a wide variety of allegations made about sexual discrimination and denial of natural justice in the hearing before the magistrate, but it is completely - - -

HIS HONOUR: Was there an application to the magistrate, was there, under the HREOC Act?

MR DERRINGTON: Yes.

HIS HONOUR: That application was dismissed?

MR DERRINGTON: It was and - - -

HIS HONOUR: This is prerogative relief sought in respect of that decision, is it?

MR DERRINGTON: It seems to be, yes.

MRS DRANICHNIKOV: From the Full Court - excuse me, your Honour - from the Full Court. Justice French dismissed my application just recently. Full Court of the Federal Court was constituted by only single judge.

HIS HONOUR: Leave. You had to get leave.

MRS DRANICHNIKOV: No, because it is a matter from the Magistrates Court, yes. I asked - this is matter, it is importance of my life and I ask to constitute Full Court by the three judges but Justice French he dismissed my application and last week I file the application for special leave to appeal and we ask to join our matter together because I was discriminated.

HIS HONOUR: To whom did you get special leave to appeal to the High Court?

MRS DRANICHNIKOV: Yes, I filed application in that matter, B105, seeking special leave to appeal from Full Federal Court under human rights and discrimination legislation because I believe, I am sure, I am confident, I was discriminated based on my gender and marital status.

HIS HONOUR: I understand that. You may not be aware of that though.

MR DERRINGTON: We have not seen many documents but I think we are generally aware that something may have been filed.

MRS DRANICHNIKOV: I was - - -

HIS HONOUR: Would you sit down, Mrs Dranichnikov.MR DERRINGTON: I think we are aware that Mrs Dranichnikov was intending to but we have not seen any documents in relation to that.

HIS HONOUR: You have not seen Justice French's decision either, you personally have not?

MR DERRINGTON: No, I have not, your Honour.

HIS HONOUR: It would be available to your instructing solicitor but he may not have had an opportunity to see it either at this stage.

MR DERRINGTON: I am told he has read it but the application, it seemed, was for an order nisi to be joined with Mr Dranichnikov's applications, whereas, now it appears an application by way of special leave which one was entitled to make from the magistrate has been made. It may be a good answer to an application for an order nisi being an alternative avenue of relief but, with respect, your Honour, it raises entirely different matters. On the other hand, it might be appropriately disposed of at once. We would say in the ordinary course of events, the court - - -

HIS HONOUR: This matter has been listed for hearing, has it not?

MR DERRINGTON: It has, on 4 February too, your Honour, and appeal books have not been prepared. I think, if my recollection serves me, their Honours indicated that the parties should come prepared to argue the appeal.

HIS HONOUR: Yes.

MR DERRINGTON: Such that timing is rather close given the intervention of Christmas.

HIS HONOUR: Thank you, Mr Derrington. That third matter, what is the number of it?

MR DERRINGTON: That is No B56 of 2002.

HIS HONOUR: Yes, thank you, Mr Derrington.

What I propose to do is to give some directions. Matter No 96 of 2000 is to proceed to the Full Court on the basis of the ground identified in the orders of the Full Court of 28 June 2002, namely, with respect to the question whether the Tribunal erred in law in treating the applicant as a member of a social group of entrepreneurs and/or businessmen and not of a more limited group consisting of entrepreneurs and/or businessmen who publicly criticised law enforcement authorities failing to take action against crime or criminals.

Matter No B54 of 2001 shall proceed similarly on the same date and will be confined to a consideration whether the Tribunal fell into jurisdictional error in treating the applicant as a member of a social group of entrepreneurs and/or businessmen rather than as a member of a more limited group consisting of entrepreneurs and/or businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals.

I will make further orders and give further directions. Subject to any order of the Court or a Justice, the index to the application book in each matter shall be settled in accordance with the documents sent to the parties under cover of a letter from the Deputy Registrar dated 11 December 2002.

I direct that 10 copies of the application book in each matter, prepared in accordance with the settled index and any directions of the Registrar, be filed and three copies served on the solicitors for the respondents on or before 10 January 2003.

I direct that the parties' written submissions be prepared in accordance with Practice Direction 1 of 2001 and be filed and served in accordance with this timetable by the applicant by 4 pm on Friday, 17 January 2003; by the respondent by 4 pm on Wednesday, 22 January 2003, and by the applicant in reply by 4 pm on Thursday, 30 January 2003.

I dismiss the applicant's application insofar as it seeks to raise grounds different from the ground which the Full Court has ordered be the ground upon which the applicant may proceed. The reasons why I do that are that the matters seem largely to have been ones which have already been advanced, albeit perhaps in not precisely the same form, and rejected by the Full Court on the application for special leave.

The proposed additional or new grounds also suffer from other deficiencies, including lack of any particularity and the attempted introduction of matter relating to the applicant's wife's separate application and in respect of which the relevant materials are not before the Court in any event.

Application B56 of 2002 is an application in which the applicant seeks to have added as a party to the proceedings to which I have just referred a claim on behalf of his wife and in respect of which, again, the papers are not before me, although it seems that that claim is intended to be made by way of an application for special leave to appeal from a judgment of Justice French of the Federal Court sitting, in effect, as a Full Federal Court. I do not have any of the papers before me in proper form in relation to that matter.

I am, however, loath to dismiss the application outright at this stage. It may be that it could be put in a proper form and the relevant materials in relation to it provided, in which event I could give consideration to that application; but, as I say, in its present form it really is not possible for me to deal with it.

What I propose to do in relation to application B56 of 2002, therefore, is to adjourn it to a date to be fixed to be brought on before me upon three days prior notice to the respondent if and only if it is supported by proper materials in proper form. So that will be my order in relation to B56 of 2002. I certify for counsel in all matters and I would reserve the costs.

Is there anything else, Mr Derrington?

MR DERRINGTON: No, your Honour.

HIS HONOUR: I may have referred earlier to Matter B54, I meant B44 of 2001. Did you have to say something, Mr Dranichnikov?

MR DRANICHNIKOV: Yes, your Honour, I not quite hear you. Can I ask you a written order of this you have done today? Can we receive written order which you have done today?

HIS HONOUR: Yes, it will be a day or two, Mr Dranichnikov.

MR DRANICHNIKOV: Yes, thank you, your Honour.

HIS HONOUR: What I have really ordered is this and you will get a proper copy of it: I have dismissed your application to amend and enlarge your grounds on the constitutional writs and on the application for special leave. I have said why I have done that. The two principal reasons why I have done that are that most of the matters in one form or another came before the Full High Court on your application for special leave and the Full High Court said no. So far as I am concerned, you have not advanced anything that is sufficiently new or different to enable me to enlarge the grounds in any way.

The other reason why I have dismissed them is that they are just not in proper form, as I tried to explain to your wife. I am not going to go into the detail of it now but your wife as a lawyer would know that legal matters can be complex and technical and sometimes they have to be expressed technically in order to have any legal force and effect or to have any legal effect. The form in which you presented the material to me, even if it were different or very different from what was before the Full Court, is not in a form in respect of which you could get any relief. It is no good arguing with me. That is my finding on the matters.

MR DRANICHNIKOV: We have no any problem in any court before but - - -

HIS HONOUR: But it may be it is a problem today and I am not going to go into it more.

MR DRANICHNIKOV: Yes, we go to the Full Court anyway.

HIS HONOUR: Now, the third matter, the other matter, the matter in which you have tried to incorporate an application by your wife into your own proceedings, I have not dismissed that. I have merely adjourned that and if that can be properly presented to me, I will give consideration to that matter. But at the moment I have neither rejected it nor accepted it. I have simply adjourned it.

MRS DRANICHNIKOV: We ask, your Honour to qualify. I got one letter special leave to appeal, my own matter, and second matter - - -

HIS HONOUR: I do not have any of those documents before me and I cannot deal with them.

MRS DRANICHNIKOV: So we have a right to present this material before you or before the Court.

HIS HONOUR: If you can put it in proper form, yes.

MRS DRANICHNIKOV: In what time?

HIS HONOUR: I have said that you can bring it on before me, if I am available and it is depending upon availability, on three days notice to the respondent and that means to the Court also. You have to file proper materials, give copies of those materials to Mr Derrington's instructing solicitor and you would have to make sure that I am available to sit. But I have not dismissed that part of the application.

MRS DRANICHNIKOV: Yes.

MR DRANICHNIKOV: Your Honour, another question: about settlement of draft of appeal book index?

HIS HONOUR: I have made orders about those matters.

MR DRANICHNIKOV: Yes, I have got my own actually from - because the High Court Rules says about very careful consideration because all the documents, a lot of documents which are irrelevant to the matter and relevant matter - I prepared my own draft. I just - - -

HIS HONOUR: You will take that to the Registrar, I do not do that here.

MR DRANICHNIKOV: Yes, but if you made already direction, maybe Regisstrar will refer to your order so - - -

HIS HONOUR: I have given directions in relation to that matter. I do not intend to go into it any further.

MR DRANICHNIKOV: Okay, thank you, your Honour.

HIS HONOUR: I do not think there is anything else, is there?

MR DRANICHNIKOV: I think not because we are going to appeal this. We would like to have view of Full Court in this matter, your Honour.

HIS HONOUR: Yes. Well, I understand that. Mr Derrington, is there anything further?

MR DERRINGTON: Nothing else that I can think of, may it please your Honour.

HIS HONOUR: All right, thank you.

AT 12.31 PM THE MATTER WAS CONCLUDED