Applicant M166-2003 v MIMIA

[2006] HCATrans 203

[2006] HCATrans 203

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M92 of 2005

B e t w e e n -

APPLICANT M166 OF 2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Summons for reinstatement of special leave application

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 27 APRIL 2006, AT 9.32 AM

Copyright in the High Court of Australia

MR J.R. HAMILTON:   If the Court pleases, I represent the applicant.  (instructed by Goz Chambers)

MR C.J. HORAN:   If the Court pleases, I appear for the respondent.  (instructed by Clayton Utz)

HIS HONOUR:   This is the matter in which time has gone by without filing the summary of argument.  Perhaps, Mr Hamilton, if I hear from Mr Horan.  What is the respondent’s attitude, Mr Horan?

MR HORAN:   The respondent opposes the application for reinstatement and extension of time.  I do not seek to rely on any particular prejudice caused to the respondent by the delay.  The main points relied upon are the absence of any adequate explanation for the failure to file within the time prescribed by the Rules and the limited prospects of success on the special leave application.

HIS HONOUR:   Assume all that to be so for the purposes of argument, what is against extending time and letting the submissions be filed and letting a Full Court look at it – whether on the papers or with oral hearing would be a matter for two Justices to determine – but let it go forward and have it dealt with.  What is against following that course, Mr Horan?

MR HORAN:   I think nothing, apart from the matters I have already mentioned to your Honour.  The secondary submission of the respondent is that in the event that the application were to be allowed that the applicant should pay the respondent’s costs.

HIS HONOUR:   Of today?

MR HORAN:   Of today, and I would apply for those costs to be paid on an indemnity basis, just on the basis that the respondent should not be out of pocket by reason of the applicant’s non‑compliance, but, in any event, the costs should be paid.

HIS HONOUR:   Yes.  Mr Hamilton, what order do you say I should make to regularise all this?  What form of order do you need to achieve the result you want to achieve?

MR HAMILTON:   That an extension of time be granted, that the deemed abandonment be set aside, your Honour, and that matters that need to be proceeded with can be scheduled, or are scheduled today or ‑ ‑ ‑

HIS HONOUR:   The Rules would take that course, would they not?  What is the rule that leads to the deemed abandonment?

MR HAMILTON:   Rule 41, I am advised, your Honour.

HIS HONOUR:   Rule 41.13.  What do you say about costs, Mr Hamilton?  Why should your client not pay the costs?

MR HAMILTON:   Your Honour, the client did not have the finances to proceed with the matter.  On my instructions, he had been told that it was necessary to get a summary of argument in within 28 days of filing the application to seek special leave but my understanding is he would not have been told about the abandonment provision.  Whether that would have made any difference, whether he could have got the money in time or not, may be he might have sought harder.  He certainly was not aware that the six‑month period was drawing near.

I note, your Honour, that the summary of argument has been lodged within about three weeks outside the six‑month period.  The six‑month period ending on 27 January and the summary of argument going in, I think, 17 February.  Your Honour, it is acknowledged that it is usual for costs to be paid sometimes in the cause in this area, and I would submit that on behalf of the applicant.  I would certainly submit that there would be no indemnity costs, your Honour, if you are inclined to award costs.

HIS HONOUR:   Yes.  The orders I will make in this matter are:

1.Direct that the application not be deemed abandoned by reason of the applicant’s failure to comply with rules 45.05.1 and 41.09.11 within six months after filing of the application;

2Direct that the applicant file and serve his summary of argument no later than 4.00 pm, 5 May 2006;

3.        The applicant will pay the respondent’s costs of today.

I do not propose to order that those costs be taxed on an indemnity basis.  There will be simply an order for payment of costs.  Counsel for the applicant will note that I have given a direction about filing and service of the summary of argument.  Although an attempt was made to file it, the filing was rejected because out of time and there was a deemed abandonment.  The applicant must file and serve the summary and must do so within the time fixed.

AT 9.40 AM THE MATTER WAS CONCLUDED