Applicant S302-2002, Ex parte - re MIMA & Ors

[2002] HCATrans 510

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  

Sydney  No S302 of 2002

In the matter of -

An application for Writs of Prohibition, Mandamus and Certiorari against MR PHILIP RUDDOCK MHR MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND SUE ZELINKA IN HER CAPACITY AS A MEMBER OF THE REFUGEE REVIEW TRIBUNAL AND STEVE KARAS IN HIS CAPACITY AS A PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Respondents

Ex parte –

APPLICANT S302/2002

Applicant/Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 9 DECEMBER 2002, AT 9.38 AM

Copyright in the High Court of Australia

APPLICANT S302/2002 appeared in person.

HER HONOUR:   I am afraid the law forbids me to identify you by name.  I do apologise for that.  I will refer you to as “sir” if it becomes necessary to do so and I will simply note that the applicant appears for himself.

MR T. REILLY:   I seek leave to appear for the first respondent, if the Court pleases.  (instructed by Clayton Utz)

HER HONOUR:   I hold a certificate from the Deputy Registrar who certifies that he has been informed by the solicitor for the second and third respondents that they do not intend to appear and that they will submit to the order of the Court save as to costs. 

Mr Reilly, the privative clause provisions would impact on this matter.

MR REILLY:   It would apply to this matter, your Honour.  We do not say ‑ ‑ ‑

HER HONOUR:   So that, in your submission, if the privative clause provisions of the Act are valid, the matter will have to be dismissed; if they are not valid, it will have to be heard.

MR REILLY:   And dismissed for the reasons we give in the written submissions.

HER HONOUR:   I know, but I have some difficulty about proceeding to even embark upon a consideration in view of the privative clause provisions.

MR REILLY:   Your Honour, it is a matter that, despite what is said by the applicant in his affidavit, can be remitted to the Federal Court without any difficulty, in my submission.

HER HONOUR:   Yes.  My problem, Mr Reilly, is simply in the face of that provision in the Act I just do not feel I can do anything until the decision is given.  Now, sir, do you understand about the case that is before the Court as to the validity of certain provisions in the Migration Act?

APPLICANT S302/2002:   My Lord, I am not familiar with the ‑ ‑ ‑

HER HONOUR:   Well, there is a case before this Court upon which the Full Court is reserved and there is no secret about the fact that a decision will be given on the case not later than 10 February.  There is no secret about that.  If the provision is valid, it would seem that your matter must be dismissed.  Depending upon what the Court decides as to that provision, your matter will either be dismissed without a hearing or you will be entitled to speak to your application. 

However, there are a very great number of cases and this is a very small Court and in a number of cases orders which are not immediately affected by this provision in the Act which the Court is considering have been remitted to the Federal Court because this Court is not able to handle them all.  Now, if it is possible for your matter to proceed, then it would not be in this Court.  Do you understand that?

APPLICANT S302/2002:   Yes, my Lord.

HER HONOUR:   Now, is there anything you want to say about that?

APPLICANT S302/2002:   Yes, please.  I have a lawyer to represent me and ‑ ‑ ‑

HER HONOUR:   I am sorry?

APPLICANT S302/2002:   My lawyer who is to represent me right now is not available when I contacted him because he is tied up with so many cases and then will – we waiting for the reports from Ghana.  He was not able to represent ‑ ‑ ‑

HER HONOUR:   You say your lawyer.  Is this the man called ‑ ‑ ‑

APPLICANT S302/2002:   Roger.

HER HONOUR:   Sorry?

APPLICANT S302/2002:   Mr Roger de Robillard.

HER HONOUR:   Mr de Robillard, yes.  A letter has come, in a most unorthodox manner, let me say, from Mr de Robillard and I note there is a request that you see a copy of it.  Do you have ‑ ‑ ‑

MR REILLY:   No, your Honour.

HER HONOUR:   Would you please give the copy to – anyway, quite independently of that letter, my own view is that no matters affected by this provision should be entertained until the decision is given.  It is just that if it is valid and operates in the way it was contended, it seems to me it would be wrong to embark upon a merits inquiry.  So let me tell you what I would propose and see what the parties say about that.  I would simply propose that the matter be relisted on 8 February when it is expected that a decision will be known.  There will be many matters listed on that day, I should think, let me tell you.  If the decision is such – well, you will be expected and your lawyer will be expected to be familiar with the decision.

The general understanding is that the decision will either be such that your matter must be dismissed or it can proceed.  That is a general statement.  If it can proceed, it just simply is not physically possible for it to proceed in this Court.  It will have to go to another court.  That would be what I should think would happen.  Do you have any problem about that?

APPLICANT S302/2002:   I have to know the date and then tell my lawyer so that he will prepare for that and ‑ ‑ ‑

HER HONOUR:   It will be Thursday, 6 February and there will be a very considerable number of matters listed that day.  There will not be an inquiry into the merits of your case, if that is possible at all, simply the following questions only:  are you entitled to proceed with the case and, if so – and your lawyer should be able to answer that by looking at the decision – why it should not be remitted to the Federal Court, as the Department, I think, would seek.  Now, do you have anything to say against that course, Mr Reilly?

MR REILLY:   No, your Honour.

HER HONOUR:   No.  Now, you should tell your lawyer that there should be some formal notification that he is acting for you and some formal notification as to how he may be contacted by mail and telephone and that the course he has taken is most irregular in my view.  That having been said, I would propose to adjourn the matter until 6 February and certify for the attendance of counsel today and order that today's costs will simply be costs in the cause.  You have no objection?

MR REILLY:   If the Court pleases.  No.

HER HONOUR:   There will be orders accordingly in this matter.  But I want it to be clearly understood that if your matter can proceed – and I am not sure that it can, but if it can - as things stand, there are many of these and it will not be possible to proceed in this Court unless there is something that your lawyer raises.  Looking at the papers at the moment, it does not look as though there is something to be raised.

APPLICANT S302/2002:   Yes, my Lord.

HER HONOUR:   Yes.  There will be orders as I indicated:  adjourn until 6 February, certify for the attendance of counsel, today’s costs to be costs in the cause.

AT 9.51 AM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 6 FEBRUARY 2003