Applicant P137-2002, Ex parte, Re MIMA

[2002] HCATrans 553

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 an Injunction against PHILIP RUDDOCK, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Ex parte –

APPLICANT P137/2002

Applicant/Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO SYDNEY

ON TUESDAY, 24 DECEMBER 2002, AT 4.25 PM

Copyright in the High Court of Australia

MR J.L. CAMERON:   May it please the Court, I appear for the applicant/prosecutor, together with my learned friend, MR D.M. McKENNA.  (instructed by Jackson McDonald)

MR P.R. MacLIVER:   I appear for the respondent, if it please the Court.  (instructed by the Australian Government Solicitor)

HER HONOUR:   Mr Cameron, it is your application and I understand it is opposed.

MR CAMERON:   It is my application. 

HER HONOUR:   Yes.

MR CAMERON:   Your Honour should have before you as filed a draft order nisi.

HER HONOUR:   Yes.

MR CAMERON:   The affidavit of David Maxwell McKenna in support of the application.

HER HONOUR:   Yes.

MR CAMERON:   And the affidavit of Shontelle Kenny in support of the application.

HER HONOUR:   I did have that but I seem to have lost that.  Yes, I have that, thank you.  Yes.

MR CAMERON:   Your Honour, in respect of the affidavit of Ms Kenny, you will notice that it annexes a report of Mr Hans-willem van Hall and that report is an updated version of the report which is annexed to the affidavit of Mr McKenna.  So, the earlier report may be ignored.

HER HONOUR:   Yes.  What do you wish me to take from that report?

MR CAMERON:   The report itself of course refers to the effect of both emotional and possibly physical upon the removal of the minor from Australia.

HER HONOUR:   Where do I find that?

MR CAMERON:   It is in the last two pages and the psychologist puts some emphasis on the fact that in Perth the applicant/prosecutor has the support of his brother.  In Nauru he does not have that support.  If I can take your Honour to paragraph 2, on page 8, he has made two attempts ‑ ‑ ‑

HER HONOUR:   Eight?

MR CAMERON:   Yes.

HER HONOUR:   I do not have ‑ ‑ ‑

MR CAMERON:   Of Ms Kenny’s affidavit.  The page I am looking for is the last page.  There is a handwritten “8” on the top right-hand corner.

HER HONOUR:   I have that, yes.

MR CAMERON:  

He has made two attempts to harm himself though neither was likely to be lethal and it doesn’t appear that he intended on either occasion to kill himself.  His suicidal ideation continues though it is largely contained to a desire to end his anguish and suffering rather than a genuine desire to die or to kill himself.  His religious beliefs are a strong factor in considering the likelihood of suicide and appear to have a significant reductive impact.  He has no current suicide plans.  Previous self‑harm attempts have been triggered by the refusal of his visa by the Australian government.

She says, in the last paragraph:

Overall, I believe that –

the applicant –

reports considerable distress as a result of his experiences to date.  I believe that the deterioration reported by his brother is actual rather than fabricated for legal purposes, and that this distress will again increase if and when he again faces the prospect of returning to Nauru with the probable implication of hopelessness about his chances of obtaining permission to stay with his brother in Australia. 

Now, the proposal is that he be returned to Nauru and subsequently be returned to Perth around the end of January for medical treatment.  No reason has been advanced by the respondent ‑ ‑ ‑

HER HONOUR:   This is your application though.

MR CAMERON:   Yes.

HER HONOUR:   And I would like to know what the legal basis of your application is and how the affidavit of Shontelle Kenny and the attached report of the psychologist bear on the legal basis of your application.

MR CAMERON:   Yes.  I will take your Honour through the outline of submissions which your Honour should also have before you.

HER HONOUR:   I have those.  What is the legal basis of your application?

MR CAMERON:   The legal basis of my application is that the applicant is a ward of the respondent pursuant to the provisions of section 6 of the Immigration (Guardianship of Children) Act.  Section 6 of that Act provides that:

The Minister shall be the guardian of the person, and of the estate in Australia, of every non‑citizen child who arrives in Australia after the commencement of this Act –

and a non‑citizen child is defined in section 4AAA of the Act and, essentially, a non‑citizen child ‑ a child:

is a non‑citizen child if the child:

(a)has not turned 18; and

(b)enters Australia as a non‑citizen; and –

at the time he enters –

(c)intends, or is intended, to become a permanent resident of Australia.

It is our submission that having entered Australia with the intention of applying ‑ ‑ ‑

HER HONOUR:   I do not think you read the definition in its entirety, have you?

MR CAMERON:   Well:

Subsection (1) does not apply if the child enters Australia in the charge of, or for the purposes of living in Australia under the care of ‑

. . .

(b) a relative –

Now, that was notwithstanding that the applicant had a brother in Australia at the time he entered on the first occasion, and I am speaking here of the first occasion.

HER HONOUR:   He did not know that.

MR CAMERON:   He did not know that.

HER HONOUR:   How do you say that the prosecutor falls within that definition?

MR CAMERON:   He does not fall within the second definition.

HER HONOUR:   What do you say is the second definition?

MR CAMERON:   I say that the definition in subsection (2) does not apply to the applicant/prosecutor.  The definitions in subsection (1) does.

HER HONOUR:   I see.

MR CAMERON:   And under subsection (3):

Subsection (1) does not apply if:

(a)the child enters in Australia in the charge of, or for the purposes of living in Australia under the care of, a person who is not less than 21 years –

old.

HER HONOUR:   Where is the evidence that he intends to become a permanent resident?

MR CAMERON:   In his affidavit which is annexed to the affidavit of Mr McKenna.  The affidavit which is annexed to Mr McKenna’s affidavit is that which was used in the Federal Court proceedings yesterday.

HER HONOUR:   Well, I have only just received these documents.  If you want relief, you will have to take it step by step, the definitions and the evidence.

MR CAMERON:   Very well.  In his affidavit in paragraph 2 ‑ ‑ ‑

HER HONOUR:   That is annexed to the affidavit of ‑ ‑ ‑

MR CAMERON:   Mr McKenna, and there is a handwritten notation, page 5 at the top of that.

HER HONOUR:   I do not know about that.

MR CAMERON:   Well, it is paragraph 2 of the affidavit of the applicant which is exhibit 1 to the affidavit of Mr McKenna.

HER HONOUR:   Yes.

MR CAMERON:   Paragraph 2, he gives his date of birth.  He:  “was born on or about 21 September 1985” which means that he was 17 in September of this year, that he was under the age of 18.  In paragraph 3 he goes on to say that he “was issued an identity card” in those terms and has been “treated as a minor by the” respondent. 

In the other paragraphs ‑ he says, in paragraph 4, that he was not accompanied by his parents.  He then, in 5 to paragraph 9, goes through the events which led him to leave Afghanistan.  Paragraph 10, he goes through the events which brought him to Australia.  I should explain that there were several attempts to reach Australia.  In paragraph 11, he says that:

The second boat developed problems in a storm and two people on the boat drowned including a small child.  The body of the child was washed up the next day.

The boat, in fact, caught fire and burned and subsequently sank and the applicant and others were rescued but, firstly, by the Australian Custom Service and were taken to Ashmore Reef and subsequently to Christmas Island.  The boat sank outside Australian territorial waters.

HER HONOUR:   When you say the prosecutor was a person who entered Australia – the definition speaks in the continuous presence.  What I am concerned about is the requirement that the person concerned intends to become a permanent resident of Australia.

MR CAMERON:   Very well, I can take your Honour to that.

HER HONOUR:   But the first question is what is the relevant time to which one looks in the case of a definition that that speaks of continuous present?

MR CAMERON:   The relevant time in respect of the first entry we would say is when he entered Australian territorial waters or, at the latest, when he arrived on Christmas Island which would be in November 2001.

HER HONOUR:   Is there a definition of Australia?

MR CAMERON:   Not in the Migration Act itself.  Once has to go to the Acts Interpretation Act.

HER HONOUR:   What about the Immigration (Guardianship of Children) Act, is there anything ‑ ‑ ‑

MR CAMERON:   There is no definition of Australia in that Act.

HER HONOUR:   So, there is no excision for the purposes of ‑ ‑ ‑

MR CAMERON:   No.  The kind of excision which one has in the Migration Act does not apply to the Immigration (Guardianship of Children) Act.

HER HONOUR:   Now, where is the evidence of intention?

MR CAMERON:   The intention is in paragraph 38 which your Honour will find on – apparently your Honour does not have a copy which is marked with the numbers but it is paragraph 38. 

In coming to Australia, it was my intention to apply for asylum as a refugee and to apply for a protection visa which would allow me to remain in Australia and to be safe.

And it is our submission that the test is a subjective test of intention.  The fact that he might not be able to remain in Australia, that he might not be eligible for such a visa is, in our submission, an irrelevant consideration in meeting the test.

Now, I think that those are the matters in the affidavit which relate to the qualification of his being the respondent Minister’s ward.  It deals with the fact that he has not turned 18; that he has entered Australia as a non‑citizen ‑ that is not contested – and he intended to become a permanent resident of Australia.

So, it would be my submission that he then became the ward of the respondent Minister under the provisions of paragraph 6 of the Immigration (Guardianship of Children) Act.  Now, if I can take your Honour to paragraph 6A.  It provides that:

(a)   A non‑citizen child shall not leave Australia except with the consent in writing of the Minister.

Now, that consent has not been forthcoming.

HER HONOUR:   It seems to me to be talking about an entirely different thing.  Is there anything about the Minister’s power to remove or cause to be removed in this Act?

MR CAMERON:   No, there is nothing of that kind in the Immigration (Guardianship of Children) Act and there is, in fact, a prohibition, as your Honour can see in section 6A and it even ‑ ‑ ‑

HER HONOUR:   Is there anything in the Immigration (Guardianship of Children) Act that makes the provisions of the Migration Act applicable?

MR CAMERON:   No.  There is nothing ‑ ‑ ‑

HER HONOUR:   There is a question, is there, whether there is any right to remove a ‑ ‑ ‑

MR CAMERON:    ‑ ‑ ‑a non‑citizen.

HER HONOUR:    ‑ ‑ ‑a non‑citizen child.

MR CAMERON:   No.  There is no specific provision for a non‑citizen child.  There are, of course, provisions in the Migration Act for the removal of a non‑citizen.  But it is our submission that in fact the provisions of the Migration Act providing for the removal of a non‑citizen must be read subject to the provisions of the Immigration (Guardianship of Children) Act when the non‑citizen is in fact a child who is subject to the Act, because, of course, the general laws, in our submission, must be read subject to the more special laws.  So, it would be our submission that when the minor was removed ‑ ‑ ‑

HER HONOUR:   Well, your submission is that until he is 18 he cannot be removed?

MR CAMERON:   That is right.  He cannot lawfully be removed from Australia.  It would be our submission that if he were removed as we submit he was in November 2001, unlawfully, he no less continued to be the ward of the Minister and subject to the provisions of the Act, while he was in Nauru and again after he has returned, so notwithstanding that on his second return he may have had no intention to reside permanently, the intention from the first occasion carries on, in our submission, to the second occasion and the Minister, on this occasion now – and it is proposed to remove him ‑ ‑ ‑

HER HONOUR:   You say he was illegally removed the first time.

MR CAMERON:   That is right, yes.

HER HONOUR:   And what happened in consequence of illegal removal may be an interesting question.

MR CAMERON:   Indeed.  Indeed.  But it is our submission that illegal removal, whether it was by the Minister or anybody else, could not mean that the Minister ceased to become the guardian of the child.  So, it is our submission that he was and remains at all material times the ward of the Minister and that includes the proceedings before the Court today in which there is a very obvious conflict because, in fact, while I am representing the child, technically, it is the Minister as guardian who should be representing the child.  In a sense, the Minister is on both sides of the record.  He is on one side in respect to his responsibilities ‑ ‑ ‑

HER HONOUR:   You need not complicate the matter more than necessary.

MR CAMERON:   Very well.  Well, so far as the disposition of the matter is concerned, it would be our submission that the appropriate course would be to adjourn the applications for the orders nisi.

HER HONOUR:   My problem with this, Mr Cameron, is that it seems to me it is not really an order nisi question, although that is what you have purportedly filed.

MR CAMERON:   Yes.

HER HONOUR:   I just thought you had an action in the original jurisdiction for whatever consequences flow, you say, from the illegal removal of this child from Australia – that is what you say?

MR CAMERON:   Yes.  Well, we certainly have that but, in our submission ‑ ‑ ‑

HER HONOUR:   But you have not incorporated this in the order nisi?

MR CAMERON:   In the draft order nisi.  No, we have not done that because of the urgency of the matter.  I mean, what we seek to do is to

preserve the situation.  The situation in Tait’s Case was that the man was to be hanged the next day.

HER HONOUR:   I know.  That is a bit more serious.

MR CAMERON:   That is a bit more serious but it would be our submission that the preservation of the emotional state of an applicant is, while perhaps not as important as ‑ ‑ ‑

HER HONOUR:   Look, I understand what you are saying in that regard but I am concerned only with the nature of the legal claim you make and the basis of it.

MR CAMERON:   Yes.  Well, the legal ‑ ‑ ‑

HER HONOUR:   Now, you tell me that you have a claim which your client wishes to pursue for a declaration that until he reaches the age of 18 he cannot be removed from Australia and that you have, in addition, a claim for a declaration – I suppose, that he was illegally removed and whatever consequences flow from that and that you are seeking an injunction to keep him in Australia to pursue those claims and that is one thing.  It might be something open like that but I cannot just act, it seems to me, on the basis of the child’s welfare.  I am not the Family Court of Australia.

MR CAMERON:   I understand that but the situation – while the emotional welfare is a factor, the primary factor is his removal from Australia which we say is unlawful and in those circumstances it would be our submission that prohibition or an injunction would be the appropriate remedy in addition to the declaration to which your Honour has referred.  If necessary, I would seek to amend the order nisi by seeking a declaration to that effect.

HER HONOUR:   Well, I think, probably, what you need to do is to reconstitute the proceedings.  However, perhaps we will hear from the respondent at this stage.

MR CAMERON:   I am obliged.

MR MacLIVER:   Yes, thank you, your Honour.  Your Honour, the respondent opposes the application and opposes any interlocutory relief being granted in this matter.

HER HONOUR:   Where is your power to remove this child?  Where is the Minister’s power to remove this child?

MR MacLIVER:   Your Honour, the Minister’s power to remove this child is, we say, in section 198A(1) of the Migration Act.

HER HONOUR:   But one has a problem, has one not, relating the Immigration (Guardianship of Children) Act to the Migration Act?

MR MacLIVER:   That is the position put by my learned friend, Mr Cameron.  We ‑ ‑ ‑

HER HONOUR:   Let me ask you this:  there is an arguable case, is there not?  There is an argument, particularly in view of section 6A, that there is no such power in relation to a non‑citizen child?

MR MacLIVER:   Yes.  The respondent’s view is that there was power and that power arose under section 198A of the Act, your Honour.

HER HONOUR:   But if one takes the view that there is an argument and there is not power, then the appropriate course is to grant the injunction, is it not?

MR MacLIVER:   Yes, I think your Honour is right.  I do not think I can argue that there is no argument that the Immigration (Guardianship of Children) Act has a part to play, and certainly that is the respondent’s position that it does not, that as an offshore entry person his removal was authorised under section 198A of the Act.

HER HONOUR:   The applicant contends there was no right to remove him to Nauru in the first place.

MR MacLIVER:   Yes, that is what he is contending.  The respondent says there was that power under 198A and, that being so, then his recent entry to Australia was a transitory person.

HER HONOUR:   But if there was not the power, what is he  ‑ ‑ ‑

MR MacLIVER:   Well, your Honour, he meets the definition of an “offshore entry person” for the purpose of 198A and he therefore, we would submit, meets the definition of a transitory person and as a transitory person there was power to bring him to Australia or to allow him to enter Australia without a visa.  That was in fact what occurred, your Honour.  He entered Australia on or about 1 November as a transitory person for the purpose, principally, of giving evidence in a coronial inquiry which coronial inquiry has taken place.

HER HONOUR:   But what is the position if he was illegally removed from Australia when he was removed from Christmas Island or the territorial seas?

MR MacLIVER:   If he was illegally removed from Australia, your Honour, then there would be an argument that now having been brought back to Australia, the position that he was in has been restored, I would have thought.

HER HONOUR:   Well, certainly, you do not provide me with any evidence that the Minister has consented to his removal.

MR MacLIVER:   To the original removal, your Honour, from Christmas Island?

HER HONOUR:   Or to any removal.  Or to the one that is intended to commence tomorrow.

MR MacLIVER:   Your Honour, I have been instructed that the Minister has consented to the applicant’s removal to Nauru tomorrow.

HER HONOUR:   In writing?  Where is it?

MR MacLIVER:   Yes.  I am instructed that it is in writing but I do not have it available to give to your Honour at the present time.

HER HONOUR:   Well, in any event, that is not really the question, is it?

MR MacLIVER:   No.  That concerns the current removal, your Honour.  Your Honour, there was some evidence in the proceedings before his Honour Justice French yesterday concerning the original removal and there was a minute attached to the affidavit that Mr McKenna had sworn in those proceedings and that minute concerns the removal of the applicant – yes, my learned friend correctly says it concerned the removal of a group of persons, minors, from Christmas Island to Nauru and Manus Island and that minute had a signature of the Minister and subsequent to that of course arrangements were made to transfer those persons and we asked his Honour yesterday to infer from that ‑ ‑ ‑

HER HONOUR:   It is a funny power related to guardianship, is it not?

MR MacLIVER:   Yes.  Your Honour, the ‑ ‑ ‑

HER HONOUR:   One would think what one is concerned with as a guardian is the best interests of the child, one would have thought, and one’s duty, one would have thought, would be to be concerned with the best interests of the child.

MR MacLIVER:   Yes.  Your Honour, there is, indeed, a question as to whether section 6A of the Immigration (Guardianship of Children) Act has any application to a situation like this.

HER HONOUR:   It may have no relevance at all but it may just be an indication that once that there is no power to remove a non‑citizen child from Australia – no power in the Minister to remove a non‑citizen child, power in parents, perhaps, but only with the consent in writing of the Minister.

MR MacLIVER:   Yes.  The provision relating to the Minister’s consent in section 6A would, I would submit, not appear to relate to a situation where the Minister’s officers are removing someone pursuant to, in this case we would say, section 198A of the Migration Act.  It would appear to be directed at a situation where the non‑citizen child wishes to leave Australia and cannot do so without the Minister’s consent.  Quite a totally different situation than that which arose in this case, your Honour.

HER HONOUR:   Well, it does seem to me, Mr MacLiver, that there is a serious issue to be tried as to whether the powers conferred or the duties conferred under the Migration Act apply to a non‑citizen child.  There may also be a question whether – of course, this person is a non‑citizen child.  There does seem to be a serious question to be tried, does there not?

MR MacLIVER:   Yes.  I do not think I could argue, your Honour, on the facts of this case and on the basis of the Migration Act and the Immigration (Guardianship of Children) Act, that there is not a serious issue to be tried.

HER HONOUR:   Yes.  Is there anything else you wish to put?

MR MacLIVER:   No, I do not think so, your Honour.

HER HONOUR:   Yes, thank you.

MR MacLIVER:   Just one other point, your Honour.  Your Honour should have an affidavit sworn by my instructor, Mr Peter John Corbould.

HER HONOUR:   Yes, I have that and I have read that.

MR MacLIVER:   Yes.  I am instructed that in relation to paragraph 11, Mr Corbould did put things round the wrong way, so to speak, and he will seek to file a supplementary affidavit to amend that, but his instructions

were, in fact, that the costs to the taxpayer of the applicant remaining in detention in Perth were in fact more than the costs that would be associated with removing him to Nauru and returning him to Perth for ‑ ‑ ‑

HER HONOUR:   He is not in fact in immigration detention, is he?  He is in a motel?

MR MacLIVER:   Well, he is in immigration detention but, yes, he is not at the Perth Immigration Detention Centre as such, he is at a motel near that centre, your Honour, yes.  If it please your Honour.

HER HONOUR:   Yes, thank you.  Mr Cameron ‑ ‑ ‑

MR CAMERON:   I would certainly say that your Honour has identified the relevant consideration that the Minister must take into account in making a decision to remove a child if he has the power which is in the best interests of the child.  It would appear from the affidavit that the only consideration that the Minister has taken into account is the cost and it is certainly ‑ ‑ ‑

HER HONOUR:   It is not clear that the Minister has considered the matter at all.

MR CAMERON:   At all, yes.

HER HONOUR:   But I do have a difficulty with the way in which the defence has been brought.  I should indicate that were you to undertake to file proceedings, putting in issue the Minister’s right, or anyone’s right – the Minister or any departmental official to remove this child from Australia, I would regard – which it seems to me is at least an arguable case.  There may be other relief you seek in relation to it.  I would be prepared to grant an injunction pending the hearing and determination of those proceedings restraining the Minister from removing ‑ pending the hearing and determination or the child reaching the age of 18, whichever should first occur.

MR CAMERON:   Could I have a moment to get instructions?

HER HONOUR:   Yes.  Before you do that, could I just tell you that the basis on which I would be prepared to do it, is that it would be necessary for the child to be in Australia to vindicate his legal rights.

MR CAMERON:   Yes.

HER HONOUR:   Or his…..legal rights.

MR CAMERON:   Yes.

HER HONOUR:   And you say, as I understood your argument, there is no power to remove him.

MR CAMERON:   Yes.

HER HONOUR:   There never was any power to remove him.

MR CAMERON:   No.

HER HONOUR:   Well, would you take instructions and ‑ ‑ ‑

MR CAMERON:   I have taken instructions.  I can give the undertaking that those proceedings will be filed.  I can indicate to your Honour that the question of the interaction between the Immigration (Guardianship of Children) Act has come before the lower courts before but has never been resolved in a satisfactory manner because, on the facts of the particular case, it has not been necessary to do so.  So, so far as I am aware, there is no reported case in which that interaction has been considered by the courts.

HER HONOUR:   Very well.  Well, are you in a position to file process seeking the relief – declaration of either relief appropriate for argument within 10 days?

MR CAMERON:   Within 10 days, yes, your Honour.

HER HONOUR:   Well, upon that undertaking, your undertaking to commence proceedings within 10 days by a properly formulated writ of summons accompanied by a statement of claim, I will grant an injunction to the Minister restraining the removal of the applicant – I will call him the applicant – I think I can name him, can I?

MR CAMERON:   Yes, you can.

HER HONOUR:    ‑ ‑ ‑ removing the applicant from Australia pending the hearing and determination of the matter or pending his attaining the age of 18, whichever shall first occur.

Now, cost of today’s should be costs in the cause.  I will certify for the attendance of counsel.  But I am thinking, Mr Cameron and Mr MacLiver, this is probably a matter where the issues can be resolved by demurrer to the statement of claim.  Is that not right?

MR MacLIVER:   I think your Honour is right, yes.

HER HONOUR:   Well then, I think the matter should come back before me for directions on 13 January.  This is not a matter that should be left lingering, as it were.  It should be put in some shape to be heard at a very early time.

MR MacLIVER:   Yes, thank you, your Honour, for that.  I wonder, just in relation to your Honour’s order in relation to the injunction, I think your Honour’s order was that it will be until the hearing and determination of proceedings or until the applicant reaches 18.  I wonder if we could also add, “or until further order”?

HER HONOUR:   Yes, certainly, or until further – well, or until further order, whichever first shall occur.

MR MacLIVER:   Yes, thank you, your Honour.

HER HONOUR:   What you really want is “or unless earlier dissolved”, do you not?

MR MacLIVER:   Yes.

HER HONOUR:   The order will then be:  restrained, pending the hearing and determination of the proceedings to be instituted or pending the applicant reaching the age of 18 years, whichever shall first occur, unless this injunction is earlier dissolved.

MR MacLIVER:   Yes.  Thank you, your Honour.

HER HONOUR:   Then the order should incorporate liberty to either side to apply on seven days notice.

MR MacLIVER:   Yes, thank you.

HER HONOUR:   Yes.  Anything further?  I have not sought an undertaking as to damages.  It does not really seem to be appropriate, it being a case where it is perfectly – it is really essential to fight the legal issues.

MR MacLIVER:   Yes.  No, I would not seek an undertaking as to damages.  Did your Honour make any order as to the costs of the proceedings today?

HER HONOUR:   Costs in the cause.

MR MacLIVER:   In the cause, thank you, your Honour.

HER HONOUR:   In the cause to be instituted within ‑ ‑ ‑

MR MacLIVER:   Yes, in the proceedings instituted.  I think that probably covers then.  My learned friend has one other order he wishes to seek, your Honour.

MR CAMERON:   Just an additional order.  We have the unusual situation where, as counsel, I am appearing in the matter in which the applicant has a legal guardian.  In those circumstances, I would seek an order as has been made in the Federal Court that no order for costs be made against any legal representative of the applicant in the course of proceedings.  It is unlikely that the respondent would object to my interfering in the proceedings but I would wish to cover myself in case that eventuality should occur.

HER HONOUR:   I am prepared to give a proviso as to today’s costs. Provide that no order should be made in respect of today’s costs against the legal representatives.

MR CAMERON:   Yes.

HER HONOUR:   But I think, for others, when the matter comes on for hearing and determination ‑ ‑ ‑

MR CAMERON:   I am quite happy with that order, if your Honour pleases.

HER HONOUR:   But, now, I do propose to list the matter for directions on 13 January.  I am sorry, I trust that it not too inconvenient to counsel.

MR CAMERON:   No.

HER HONOUR:   To ensure that the proceedings have been instituted and the statement of claim, already filed ‑ and to see whether the matter can then proceed by way of demurrer or stated case so there will be no undue delay in the matter.

MR CAMERON:   I am obliged to your Honour.

HER HONOUR:   Very well.  I wish counsel and legal representatives in Court a Merry Christmas.

MR CAMERON:   Those sentiments are certainly reciprocated from Perth, your Honour.

HER HONOUR:   Thank you.  The Court will now adjourn the matter until 13 January.  It will be at a time to be advised to accommodate the Perth time difference.  It will just simply be adjourned to 13 January.

AT 5.09 PM THE MATTER WAS CONCLUDED