Applicant B51-2004, Ex parte - Re MIMIA & Ors

[2004] HCATrans 485

[2004] HCATrans 485

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Brisbane  No B51 of 2004

In the matter of -

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

First Respondent

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Respondent

LUKE HARDY MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte –

APPLICANT B51/2004

Applicant/Prosecutor

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 22 NOVEMBER 2004, AT 11.17 AM

Copyright in the High Court of Australia

__________________

MR S.M. HEGEDUS:   If your Honour pleases, I appear for the applicant.  (instructed by the applicant)

MR P.G. BICKFORD:   If it please your Honour, I appear for the respondent.  (instructed by Clayton Utz)

HIS HONOUR:   Yes, Mr Hegedus. 

MR HEGEDUS:   Your Honour, I understand there is a notice of motion before the Court to dismiss this application.  Would we be dealing with that notice of motion first, or would we be dealing with the substantive merits of the case? 

HIS HONOUR:   I think it is probably more convenient to hear you, because ‑ ‑ ‑

MR HEGEDUS:   Yes, your Honour. 

HIS HONOUR:   But just wait a moment, I will just ask Mr Bickford something first. 

MR HEGEDUS:   Yes, your Honour. 

HIS HONOUR:   Mr Bickford, when was the application for prerogative relief filed? 

MR BICKFORD:   It was filed on 16 September 2004, your Honour, and served on us on 24 September.  We filed an affidavit of Ms Bianchi last Friday.  We have not filed a notice of motion as yet. 

HIS HONOUR:   I am sorry? 

MR BICKFORD:   We have not filed a notice of motion to dismiss. 

HIS HONOUR:   No, that is what I thought.  I did not understand that you had done ‑ ‑ ‑

MR BICKFORD:   We were foreshadowing that we intended to do that, but it was too late, in the end, to file it by the end of last week.  So we are simply here to ‑ ‑ ‑

HIS HONOUR:   How does the matter come on then today? 

MR BICKFORD:   I am not 100 per cent sure, your Honour.  Initially, we thought it was on for directions, but the Registry informed us that was not the case.  It was either on for hearing of ‑ ‑ ‑

HIS HONOUR:   So it is really Mr Hegedus’ client’s application ‑ ‑ ‑

MR BICKFORD:   Yes, it is, your Honour. 

HIS HONOUR:   ‑ ‑ ‑ that has been brought on by the Registry?  I confess that what happened was I was contacted and asked whether I could deal with the matter, but the matter I thought I was dealing with was the application of Mr Hegedus’ client, and that is correct, I am. 

MR BICKFORD:   Yes. 

HIS HONOUR:   All right. 

MR BICKFORD:   We are here to resist that. 

HIS HONOUR:   I understand that.  Well, Mr Hegedus ‑ ‑ ‑

MR HEGEDUS:   I apologise, your Honour, I received an email from the respondent’s solicitor ‑ ‑ ‑

HIS HONOUR:   Well, you have only just come into the matter. 

MR HEGEDUS:   That is right.  I received an email which was, in effect, a notice of motion.  I was not aware that that had not been filed before the Court. 

HIS HONOUR:   When did you come into the matter, Mr Hegedus? 

MR HEGEDUS:   I was telephoned on Thursday last week.  I said, obviously, that I thought it was not enough time to prepare and, indeed ‑ ‑ ‑

HIS HONOUR:   Do you want to apply for an adjournment, do you? 

MR HEGEDUS:   Well, I think that is appropriate, your Honour, because the applicant was notified by the High Court Registry by a letter dated 10 November that this matter would be on today.  Now, that letter did not reach him for three or four days ‑ ‑ ‑

HIS HONOUR:   That is right, if you tell me you have not got time, I can understand that that may be so.  When were you first instructed in the matter, Mr Hegedus? 

MR HEGEDUS:   For this particular matter, Thursday last week. 

HIS HONOUR:   You are at the Bar, or you are a solicitor? 

MR HEGEDUS:   Yes, I have been at the Bar for two months.  Obviously, for myself, I was very reluctant to be involved, being new to the Bar and taking on a matter so substantial, with such short notice, your Honour. 

HIS HONOUR:   How did you come to be briefed?  Do you have a solicitor, Mr Hegedus? 

MR HEGEDUS:   No, your Honour.  To be absolutely honest, your Honour, the applicant was a taxi driver in Sydney and ‑ ‑ ‑

HIS HONOUR:   He approached you? 

MR HEGEDUS:   ‑ ‑ ‑ and I got a lift with him to the airport.  I did appear, your Honour, in the special leave application originally.  I was not at the Bar at that stage, I did that by way of leave, but I was not a party to advising the commencement of these particular proceedings. 

HIS HONOUR:   No.  Mr Hegedus, what is the current Bar rule?  Are you able to accept instructions direct? 

MR HEGEDUS:   Yes, in Queensland, your Honour, you are, as long as it is something that ‑ ‑ ‑

HIS HONOUR:   Pro bono sort of thing, is it? 

MR HEGEDUS:   No, you can accept direct briefing.  I think, though, as I am a pupil, it is something that I am advised to get some instructions from my pupil masters about whether or not it is ‑ ‑ ‑

HIS HONOUR:   Appropriate. 

MR HEGEDUS:   ‑ ‑ ‑ appropriate.  On that basis, I did contact Mr Lorenzo Boccabella, who said, certainly, that he thought it was too short a time for me to do anything with, not to mention anything to do with the merits of the particular application.  So that was why I obviously had some hesitancy in appearing before you today. 

HIS HONOUR:   Well, subject to what Mr Bickford says, I would certainly be minded to grant you an adjournment. 

MR HEGEDUS:   Yes. 

HIS HONOUR:   But it should not be for too long, not because of anything you have or have not done, but simply because this application is way out of time, as you know.  Subject to what Mr Bickford says, if I were to adjourn it to next Friday, would that give you time? 

MR HEGEDUS:   Would that be 3 December, your Honour? 

HIS HONOUR:   No, I was thinking of next Friday.  Just hold on a moment.  I mean this coming Friday, which is ‑ ‑ ‑

MR HEGEDUS:   As in 26 November? 

HIS HONOUR:   Yes. 

MR HEGEDUS:   I actually have a Local Court hearing on that day, your Honour. 

HIS HONOUR:   Do you?  What about Monday? 

MR HEGEDUS:   Yes, Monday would be acceptable. 

HIS HONOUR:   Thank you, Mr Hegedus.  Now, Mr Bickford, I have not heard you in relation to the adjournment.  You might appreciate that it is very important for Mr Hegedus’ client.  He plainly has not had an opportunity to prepare, and I am not too sure how the matter really – I was party to its coming on today, but I had assumed that there was more urgency about it than there apparently is. 

MR BICKFORD:   Yes.  Well, certainly, I do not think there is any present threat to remove the applicant.  The usual, as your Honour knows, bridging visa issues where there are live proceedings on foot.  However, as your Honour said, they are way out of time for asking for this relief, but, worse than that, they have had a full merits review through the system ‑ ‑ ‑

HIS HONOUR:   I know. 

MR BICKFORD:   ‑ ‑ ‑ to the High Court level. 

HIS HONOUR:   This is their second attempt to enter this jurisdiction. 

MR BICKFORD:   Yes, indeed so.  It is a very clear case of abuse of process. 

HIS HONOUR:   Mr Bickford, are you personally available next Monday? 

MR BICKFORD:   That is the 29^th? 

HIS HONOUR:   Yes. 

MR BICKFORD:   Yes, I am, your Honour. 

HIS HONOUR:   Well, I think I will adjourn it until the 29^th, Mr Bickford. 

MR BICKFORD:   Yes, your Honour. 

HIS HONOUR:   If anybody wishes to file more material, they should file and serve it by next Wednesday.  I will give a direction to that effect. 

MR BICKFORD:   Yes.  We should probably file our notice of motion, your Honour, to get the matter on a proper footing ‑ ‑ ‑

HIS HONOUR:   If you need to, yes. 

MR BICKFORD:    ‑ ‑ ‑ and an appearance and so forth. 

HIS HONOUR:   Well, in any event, I do not know whether you need do that.  I am saying that there is an application before the Court for prerogative relief and I will deal with that on Monday. 

MR BICKFORD:   Yes, thank you, your Honour.  Would your Honour reserve the costs? 

HIS HONOUR:   Yes.  I reserve the costs and give a direction that further material, if any, must be filed and served by 4 o’clock on Wednesday next.  Do you want to say something, Mr Hegedus? 

MR HEGEDUS:   I apologise, just in relation to that timetable, do you mean this coming Wednesday? 

HIS HONOUR:   I do, yes. 

MR HEGEDUS:   As in two days from today? 

HIS HONOUR:   Yes.  There has been a lot of time passed, Mr Hegedus.  I understand the difficulty, but we have to get on with it.  I will order that costs be reserved. 

MR HEGEDUS:   Thank you, your Honour. 

HIS HONOUR:   Nothing further, Mr Bickford? 

MR BICKFORD:   Nothing more, your Honour. 

HIS HONOUR:   You have nothing further, Mr Hegedus? 

MR HEGEDUS:   No, thank you. 

HIS HONOUR:   All right.  Thank you. 

AT 11.25 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 29 NOVEMBER 2004