A, Ex parte- Re Pelekanakis

[1998] HCATrans 254

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne               No M33 of 1998

In the matter of -

An application for writs of
  Prohibition, Mandamus and
  Certiorari against
  BOB PELEKANAKIS

First Respondent

THE HONOURABLE
  PHILIP RUDDOCK MP

Second Respondent

Ex parte -

"A"

Prosecutor/Applicant

HAYNE J   (in Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 24 JULY 1998, AT 9.40 AM

(Continued from 2/6/98)

Copyright in the High Court of Australia

____________________

MR T.V. HURLEY:   Your Honour, I appear on behalf of the prosecutor/applicant.  (instructed by Erskine Rodan and Associates)

HIS HONOUR:   Mr Hurley, I have a certificate from the Deputy Registrar that the solicitors for the respondent in this matter do not wish to be heard at the hearing of your application for confidentiality orders.

MR HURLEY:   Yes.  Your Honour, we seek an order in the following terms, if I can submit a copy.  One copy has been forwarded to the Court, if I can submit a copy of the orders we seek, which are to amend the title of the proceeding and that that operate - I am instructed that the date in paragraph 2 is 7 May, which is the date of the affidavit when the proceedings were initiated in this Court.

HIS HONOUR:   Now, this is an order that would deal only with the file.  It would say nothing about the transcript of proceedings, would it?

MR HURLEY:   Your Honour, it is the recollection of my instructors and myself that the transcript did not contain any material that, apart from the identity of the applicant if that was mentioned in transcript, that would concern the applicant.  It is our recollection, not having seen the transcript, that most of the discussion was between your Honour and my learned opponent as to matters relating to the Migration Act and its operation.

HIS HONOUR:   Yes.

MR HURLEY: So it is our recollection, your Honour, that there would be no need to seek an order that the transcript be revised in light of these orders. The question that we ventilate before this Court would not arise in the Federal Court because of the provisions of section 50 of the Federal Court of Australia Act, where an order can be made which has the effect of preventing the identification of persons in certain circumstances.

HIS HONOUR:   The order for remitter now having been made, wherever the file happens to be, the order for remitter would ordinarily mean that the file would be with the Federal Court, and if you like under the control of the Federal Court.  We in the High Court I think would ordinarily retain no part of the file.  Perhaps the Deputy Registrar could tell me what that position is.

REGISTRAR:   The remitter order directs the Deputy Registrar to forward photocopies of all documents filed in the High Court.

HIS HONOUR:   I see, so there is something left in the Court.

MR HURLEY:   Yes, your Honour. 

HIS HONOUR:   Yes, I see.

MR HURLEY:   The point about paragraph 3, your Honour, is that there are provisions in the High Court Rules relating to inspection of various matters of the High Court file.

HIS HONOUR:   Yes.

MR HURLEY:   But that is not a realistic prospect and if it happens, well, we can simply ‑ ‑ ‑

HIS HONOUR:   Yes.  What date do you say in paragraph 2?

MR HURLEY:   7 May is the date upon which the proceedings commenced.

HIS HONOUR:   Mr Hurley, you may take an order in these terms.  Paragraph 1 of the draft I would amend by deleting the reference to the rule under which it is made so that it will read simply:

1. The title to this proceeding be amended to describe the prosecutor/applicant as "A".

I make that amendment simply because I would not wish to confine the power to that rule.  Paragraph 2 I would leave as typed.  I was minded to put in a particular date but I think it may be better if paragraph 2 reads:

1. The amendment ordered in paragraph (1) hereof operate nunc pro tunc from the date upon which the affidavit of the prosecutor/applicant was filed in the High Court.

1. No person be granted access -

etcetera.  I will initial the amended form of the draft order and there will be orders in those terms.  Should I certify for your attendance at Chambers as well?

MR HURLEY:   Yes, your Honour, I never oppose that.

HIS HONOUR:   Then I will add:

1. Certify for counsel.

Is there anything else?

MR HURLEY:   Your Honour, the only matter is this.  As I indicated, your Honour, it is the recollection of my instructors and myself that there is nothing in the transcript.  We haven't actually seen it.  I believe our recollection is correct but the obvious concern, your Honour, is that in the modern day and age these matters that occur with only five people in the room, within moments can be throughout the known world.

HIS HONOUR:   The transcript will of course ordinarily go up on the Net.  I have made only a cursory examination of the transcript.  That cursory examination suggests that there is no reference to the applicant except in the title and in the footer of the transcript.  It may be necessary that we amend the footer before it hits the Net.  I must in the end say it is for you to make the application or whatever application you think you need.

MR HURLEY:   Your Honour, our recollection is confirmed.

HIS HONOUR:   Yes, very well.  There will be orders in those terms, thank you, Mr Hurley, and I will adjourn.

MR HURLEY:   Thank you, your Honour. 

MATTER ADJOURNED AT 9.49 AM