Applicant P137-02, Ex parte Re MIMIA, Plaintiff P1-2003 v MIMIA

[2003] HCATrans 546

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  

Perth  No P137 of 2002

In the matter of -

An application for Writs of Prohibition and Mandamus and Injunction against PHILIP RUDDOCK, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Ex parte –

APPLICANT P137/2002

Applicant/Prosecutor

Office of the Registry  

Perth  No P1 of 2003

PLAINTIFF P1/2003

Plaintiff

and

PHILIP RUDDOCK, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Writ of summons

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO SYDNEY

ON MONDAY, 13 JANUARY 2003, AT 12.02 PM

Copyright in the High Court of Australia

__________________

MR D.M. McKENNA:   May it please your Honour, I appear, together with my learned friend, MR J.L. CAMERON.  (instructed by Jackson McDonald)

MR P.R. MACLIVER:    I appear for the Minister.  (instructed by the Australian Government Solicitor)

HER HONOUR:   Perhaps I should indicate that on the last occasion I expressed the view that one did not have to use numbers in lieu of the plaintiff or other applicant’s name.  It seems that there is some doubt about that, so I propose to amend the transcript from the last occasion to delete reference to the applicant’s/plaintiff’s name and to replace it with the number.  Is that ‑ ‑ ‑?

MR McKENNA:   Yes, thank you, your Honour.  When we went to file the documents we were told by the Court that they preferred to do it this way.

HER HONOUR:   Yes, thank you.  Well, now, I see you have filed a summons of statement of claim which I have had a look at.  There was just one matter:  I had thought – and perhaps it is inclusive in your statement of claim – that you would seek a declaration that the plaintiff was not entitled to be removed from Australia while under 18?

MR McKENNA   Yes, your Honour, that is, perhaps, an appropriate relief and we could seek to amend to ‑ ‑ ‑

HER HONOUR:   It is implicit in your statement of claim, is it, but it is not ‑ ‑ ‑?

MR McKENNA:   It is.

HER HONOUR:   I thought it was implicit but it had not been expressly spelt out.

MR McKENNA:   Yes, that is correct.

HER HONOUR:   Yes.  Well, perhaps you might like to think about that.  I will just see if Mr Macliver requires further directions or ‑ ‑ ‑

MR McKENNA:   Your Honour, there is one other matter that we have and that is the injunction which has been made has been made in relation to the other proceedings which were commenced by affidavit.  They remain on foot and, therefore, your Honour’s injunction would continue to apply but we now do have separate proceedings and we think it would be appropriate to also seek an injunction in these proceedings to ensure that there is ‑ ‑ ‑

HER HONOUR:   We do not need two injunctions.  Shall I dissolve the earlier injunction and make it in these proceedings?

MR McKENNA:   Yes, your Honour, if you would do so, please.

HER HONOUR:   On that basis, you could take whatever further course you may be so advised in relation to the P137 of 2002.

MR McKENNA:   Yes.  Thank you, your Honour.

HER HONOUR:   Thank you.  Yes, Mr Macliver.

MR MACLIVER:   Yes, your Honour.  In view of the fact that the further proceedings have been instituted, the respondents would see that there is no necessity to continue with the existing proceedings, that is the previous proceedings, P137/2002, and we would ask your Honour simply now to dismiss those proceedings.  Then, of course, it would be appropriate to make an injunction in similar terms to the injunction which your Honour previously made in the new proceedings.

HER HONOUR:   Yes, thank you.  Now, would you be in any position to plead expeditiously to this statement of claim?

MR MACLIVER:   Your Honour, we are still taking instructions and need to consult with senior counsel.  We will endeavour to provide a defence as soon as we can.  I understand under the Rules the time limit is until, I think, 5 February.

HER HONOUR:   Yes, we are not out of time.  It was just that I thought, given the age of the plaintiff, it might be advisable to see if the matter could be determined before he is 18.

MR MACLIVER:   Yes, your Honour, that is right.

HER HONOUR:   It would depend on your pleading expeditiously.

MR MACLIVER:   Yes.

HER HONOUR:   I would not make any order in that regard.

MR MACLIVER:   Yes.  Otherwise, your Honour, we would not see the need for any other orders at present.  The parties may well wish, once the defence has been filed, to bring on a summons for directions.

HER HONOUR:   Yes, very well.  Thank you.  Mr McKenna, do you have any objection to the course proposed by Mr Macliver, namely, that upon my making an injunction in P1/2003 in the same terms as that made on 24 January in P137/2002, that P137 should stand dismissed?

MR McKENNA:   No, I have no difficulty with that, your Honour.

HER HONOUR:   Very well.  What I would be thinking is that it should stand dismissed with no order as to costs because it all seems to be subsumed in this matter now.

MR McKENNA:   Yes, your Honour.

HER HONOUR:   Yes.  Well, if Mr Macliver does not object, what I would propose – I would just ensure that there is no objection:

(1)  that in matter P1/2003 an injunction be granted in the same terms as that granted in P137/2002 on 24 December 2002;

(2)  that the proceedings P137/2002 stand dismissed, no order as to costs;

(3)   liberty to either side to apply on three days notice.

Does either party have any difficulty with those orders?

MR MACLIVER:   Your Honour, just one query in relation to your Honour’s order for costs; that there be no costs of the application dismissed.  Your Honour may recall that on the previous occasion your Honour did make an order that the costs be costs in the cause to be instituted.

HER HONOUR:   I see.

MR MACLIVER:   So, I am not sure that we need any order as to costs today.  Your Honour’s previous order will cover the costs because there will only be the costs of the previous occasion.

HER HONOUR:   Yes.  Well, perhaps I should note simply that in P1/2003, that the costs of the proceedings on 24 January and today to be costs in the cause and certify, of course, for the attendance of counsel.

MR MACLIVER:   Yes, shall be costs in the cause of P1/2003, yes.

HER HONOUR:   Yes.

MR MACLIVER:   Yes, thank you, your Honour.

MR McKENNA:   Your Honour, there is only one other order that we would seek and that is an order that the plaintiff’s representatives not be required to pay the costs of today, a similar order to the one that your Honour made on the 24^th.

HER HONOUR:   Well, they have not been sought, have they?  But I will certainly – if you seek that protection you have, I will.

MR McKENNA:   Thank you, your Honour, if you would.

HER HONOUR:   I am puzzled by this, Mr McKenna.  Nobody has sought costs against you.  What is happening in this jurisdiction that leads you to make this application?

MR McKENNA:   It is simply because of the nature of the matter being pro bono and also that the Minister is on both sides of the record.  It is simply for protection.  I do not know if my friend is able to indicate whether it is not necessary.

MR MACLIVER:   Your Honour, we had no objection to the order but my instructions are that there is certainly no intention to seek costs against my learned friends personally.

HER HONOUR:   Well, I will simply note your observation that there is no intention to seek costs against the legal representatives personally in respect of today’s proceedings.  I find it somewhat curious to do more than that in the circumstances.

MR MACLIVER:   Very well, your Honour.

HER HONOUR:   Mr McKenna, surely it is sufficient if I just note that
there is no intention to seek costs.

MR McKENNA:   No, no, I am quite happy with that, your Honour.

HER HONOUR:   Yes, thank you very much.

HER HONOUR:   Very well, there will be orders as indicated in the course of the transcript and the matter stands adjourned sine die.

AT 12.14 PM THE MATTER WAS CONCLUDED