Applicant S214-2002, Ex parte - Re MIMIA

[2002] HCATrans 329

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Sydney  No S214 of 2002

In the matter of -

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

Respondent

Ex parte –

APPLICANT S214/2002

Applicant/Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 AUGUST 2002, AT 9.33 AM

Copyright in the High Court of Australia

MR J.J. HYDE:   If the Court pleases, I appear with MR M. VINCENT for the prosecutor.  (instructed by Griffin Vincent Pty Limited)

MR R.J. BROMWICH:   If the Court pleases, I appear for the first respondent.  (instructed by Sparke Helmore)

HER HONOUR:   Now, there is a difficulty about these papers, is there not, Mr Hyde?  I think it is Mr Hyde’s problem, not yours, Mr Bromwich.

MR BROMWICH:   I was just going to indicate in relation to the problem that my instructing solicitor is in contact with the Administrative Appeals Tribunal and he is outside.  I am not sure what is coming of that, but just to inform the Court.

HER HONOUR:   Yes. 

MR HYDE:   Your Honour, I can indicate that the AAT was served only late last night.

HER HONOUR:   Well, exactly.

MR HYDE:   Yes.  I apologise for that.  That was the earliest that we could do it in the circumstances.

HER HONOUR:   Yes.  Well, that is not entirely true, is it?

MR HYDE:   Well, it may have been that we could have got there an hour or two earlier but ‑ ‑ ‑

HER HONOUR:   What I mean by that is that – when was the matter first filed, 13 June?

MR HYDE:   Yes, 13 June this year.

HER HONOUR:   Yes, and you filed an amended draft order nisi yesterday.

MR HYDE:   Yes, that is right.

HER HONOUR:   Well now, there is no explanation as to why the amended notice was not filed prior to yesterday so that at least I might have had a chance to look at the papers and ascertain what the issues were.

MR HYDE:   Yes.  I can indicate there is an affidavit from Mr Vincent.  He is a solicitor that has been instructed on ‑ ‑ ‑

HER HONOUR:   What date was that filed?

MR HYDE:   Yesterday.

HER HONOUR:   Yes.  Now, ordinarily one has regard to the papers before one comes into Court to deal with these matters, and there is no opportunity for that to occur or to see that the papers are in order when they are filed on the day before the matter is listed for hearing.

MR HYDE:   Yes.  I accept that, your Honour.

HER HONOUR:   Yes.  Very well, we still need to see what is happening about the AAT, do we not?

MR BROMICH:   My instructing solicitor has been in contact but he does not have any instructions to act and I am not aware of anyone else being present who has instructions to act.

HER HONOUR:   Yes, thank you.  Well, what are we to do in those circumstances?

MR HYDE:   Your Honour, it may be appropriate to have the matter put off for a period of time so that we can comply, in effect, with the three‑day rule.  I am really in your Honour’s hands.  I accept that they should have been served earlier.  They have not been and that is our responsibility.

HER HONOUR:   There is in any event another problem, is there not?

MR BROMICH:   Your Honour, I have become aware of a problem which may or may not be the one that your Honour is adverting to, and that is that the submissions which were done necessarily in much of a hurry I think have two problems.  One is that they deal with section 486A, which I understand is before the Full Court next week, and ‑ ‑ ‑

HER HONOUR:   Exactly, yes.

MR BROMICH:   Secondly ‑ and perhaps I need to place this on the record ‑ I think the submissions, from my understanding from speaking to Mr Lloyd who is in that matter next week, are inconsistent with the Commonwealth’s view on that.  It was the case that instructions were obtained in something of a hurry and it is very likely that those submissions would not be the ones that we would ultimately be putting before the Court.  But I apologise for that, your Honour.

HER HONOUR:   It would seem that the matter will have to go over pending the outcome of next week’s proceedings, will it not?

MR BROMICH:   I think it is certainly the case that that is the appropriate course, your Honour.

HER HONOUR:   Do you understand that, Mr Hyde?

MR HYDE:   Yes, I do.

HER HONOUR:   You understand about the issues before the Court next week?

MR HYDE:   Yes, I do.

HER HONOUR:   Shall I by consent stand the matter over for six weeks and we will see what – there may or may not be a decision in the matter then.  Now, it is true I have only had a quick look at the various papers this morning because of the lateness of their filing.  Is all the material necessary with respect to the AAT proceedings before the Court?  It was not clear to me that it was ‑ ‑ ‑

MR BROMICH:   Your Honour, I cannot say that it is in relation to the AAT and even if it is in relation to the AAT, I cannot say the material overall is complete because one thing that was added was the delegate’s decision and I do not think there is material directly on that before your Honour or before the Court.

HER HONOUR:   The reason I ask is that the parties should make an effort to get the material that will be necessary in form within the next six weeks.

MR HYDE:   Yes.

HER HONOUR:   Well, what I propose to do at this stage is simply certify for counsel and today’s costs be costs in the cause.  I adjourn the matter until Tuesday, 15 October at 9.30 am.

MR BROMICH:   That is suitable.

HER HONOUR:   Is that suitable?

MR HYDE:   Yes, thank you, your Honour.

HER HONOUR:   Yes, thank you.  Well, there will be orders accordingly.

AT 9.40 AM THE MATTER WAS ADJOURNED

UNTIL 15 OCTOBER 2002