Adnan v Minister for Immigration and Citizenship & Anor

[2012] HCATrans 328

[2012] HCATrans 328

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S346 of 2011

B e t w e e n -

ABUL ADNAN

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Application for order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 DECEMBER 2012, AT 12.30 PM

Copyright in the High Court of Australia

HIS HONOUR:   Please call the plaintiff outside Court.

COURT OFFICER:   No appearance, your Honour.

MS L.B. BUCHANAN:   May it please the Court, I appear for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Ms Buchanan.

MS BUCHANAN:   Your Honour, in this matter I seek leave to file two affidavits in Court.  One is an affidavit of service and the other annexes some correspondence which was received from an email address - and is said in the email to come from the plaintiff - that I received over the weekend.

HIS HONOUR:   Thank you.  I grant leave to the defendants to file in Court an affidavit of 2 December 2012 affirmed by Louise Bernadette Buchanan and an affidavit sworn on 28 November 2012 by Mark Slater.

I think it is possible to be rather more expeditious with this plaintiff than others, but for the sake of form let me say this. 

On 20 October 2011, the plaintiff filed an application for an order to show cause why prerogative writs and other relief should not run. It complained that the first defendant, the second defendant and its officers had failed to observe natural justice in relation to s 351 of the Migration Act 1958 (Cth). That is a provision the plaintiff wishes to take advantage of with a view to overturning a prohibition against applying for a visa. The first defendant refused to exercise his powers under s 351.

On 7 September 2012, the High Court of Australia dismissed the applications in four representative actions being run by Parish Patience with a view to settling the position of numerous persons, including the plaintiff:  Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 86 ALJR 1019; 290 ALR 616. Those cases dealt with provisions which included s 351 and they held that those provisions were not conditional on observing the principles of natural justice.

On 15 November 2012, the defendants filed written submissions intending that the plaintiff’s application should be dismissed with costs because of the decision in the four cases referred to.  Those submissions are correct.  On Saturday, 1 December 2012, by an email sent at 5.08 am to Louise Bernadette Buchanan the plaintiff said:

I am not going further with the case anymore.  I accepted the outcome of the case.  I paid the cost to parish patience at the beginning.

On Saturday, 1 December at 1.10 pm, Ms Buchanan invited the plaintiff to discontinue the proceedings by signing a notice of discontinuance, but no signed letter of discontinuance has been received.

In the circumstances it is appropriate to dismiss the plaintiff’s application for an order to show cause.

What about the costs of today?  The plaintiff - I know he did not sign the notice of discontinuance, but he did give notice that he would not be attending to oppose your application today.  So it seems to me that no order as to costs is appropriate?

MS BUCHANAN:   For the costs of today?  Indeed, your Honour. 

HIS HONOUR:   I order the plaintiff to pay the costs of these proceedings, other than the costs of today.

AT 12.35 PM THE MATTER WAS CONCLUDED