Applicant Nasl of 2002 v MIMIA

[2004] HCATrans 150

[2004] HCATrans 150

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S455 of 2003

B e t w e e n -

APPLICANT NASL OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 4 MAY 2004, AT 2.37 PM

Copyright in the High Court of Australia

MR J.D. SMITH:   May it please the Court, I appear for the respondent.  (instructed by Sparke Helmore) 

GLEESON CJ:   Yes, Mr Smith.  Well, you have no doubt received the communication, have you, about the applicant’s skin lesions? 

MR SMITH:   Yes, your Honour. 

GLEESON CJ:   He seeks to postpone the hearing to a future date, enclosing a doctor’s certificate.  Has anyone at any stage in these proceedings ever told this applicant that the way to apply for an adjournment of proceedings on the basis of illness is to produce sworn testimony in the form of an affidavit or a witness who can give oral evidence about his condition? 

MR SMITH:   I do not know, your Honour. 

GLEESON CJ:   Then why should we not tell him that now and stand the matter over to a date to be fixed, on the basis that the applicant will be informed by the Registry of the Court that in the case of a disputed application for an adjournment on medical grounds it is ordinarily necessary for the applicant to produce sworn testimony in the form of an affidavit – whose deponent may be required to attend for cross‑examination – or a witness who can give oral testimony, and that in the case of the present applicant, if, on the occasion when the matter is next listed for hearing, he seeks a further application for adjournment on the basis of his medical condition, the Court will expect that sworn testimony of that nature as to his medical condition be available to the Court and that, if testimony of that kind is not produced, there is a substantial likelihood that the Court will go ahead and deal with the matter on the papers.  Are you content with that course, on the basis that we reserve the question of costs of today? 

MR SMITH:   Yes, your Honour. 

KIRBY J:   Your solicitor has not had any contact with the applicant other than the materials that we have received? 

MR SMITH:   My instructing solicitor spoke to the applicant this morning. 

GLEESON CJ:   What did he say? 

MR SMITH:   There was some difficulty of communication, because the language ‑ ‑ ‑

KIRBY J:   I think there might be an interpreter present in Court.  I saw somebody come forward. 

THE INTERPRETER:   Yes, I am the Spanish interpreter, your Honour. 

KIRBY J:   You are a Spanish interpreter, yes.  Well, it does not look as though your services are going to be required. 

GLEESON CJ:   Well, I suggest that the Registry also inform the applicant, in relation to any medical evidence on which he may rely, that a certificate from a doctor that somebody is not fit to work does not necessarily establish that somebody is not fit to come to court and give evidence.  I will ask that the Registry communicate that information also to the applicant at the same time. 

MR SMITH:   Yes, your Honour. 

KIRBY J:   I just get a little feeling in my bones, Mr Smith, that you were coming along here today to ask us to refuse the adjournment and proceed on the papers.  Am I correct, or not? 

MR SMITH:   Yes, your Honour. 

KIRBY J:   I see.  But the Chief Justice’s wisdom and logic has overborne your desire to fight for that end. 

MR SMITH:   There is a good deal of sense in the suggestion of the Chief Justice, your Honour. 

GLEESON CJ:   I can see the sense of it perfectly.  It is easy to understand, Mr Smith, how people can be under the misapprehension that a written certificate from a medical practitioner saying that you are unfit for work will be treated by a court as evidence of unfitness to turn up and give evidence.  It is desirable that people who send such certificates in through the mail have their attention drawn to the fact that the Court, if it wants to grant an adjournment, where it is opposed – as you oppose this adjournment – will have to act on the basis of evidence. 

MR SMITH:   Yes, your Honour.

KIRBY J:   You do not seem very happy, Mr Smith, at the course of events. 

GLEESON CJ:   One of the signs we do not put on the door of the Court, Mr Smith, is “We aim to please”. 

We will adjourn this matter, against the opposition of the respondent, on the basis of the claim for an adjournment, unsupported as it is by admissible evidence, until a date to be fixed, on the basis that in the meantime the applicant will be warned of the necessity for supporting an application for a contested adjournment by admissible evidence.  We will reserve the question of costs today.  

MR SMITH:   As the Court pleases. 

GLEESON CJ:   We will adjourn now. 

AT 2.42 PM THE MATTER WAS ADJOURNED