Applicant S310-2002, Ex parte - Re MIMIA & Ors

[2002] HCATrans 434

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S310 of 2002

In the matter of -

An application for Writs of Mandamus, Certiorari and Prohibition and an injunction against SENATOR THE HONOURABLE PHILIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

MR GRANT BROWNE, COMPLIANCE OFFICER, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

DIONNE DIONISIO, A/G ASSISTANT MANAGER COMPLIANCE, SYDNEY CBD REGIONAL OFFICE, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Third Respondent

Ex parte –

APPLICANT S310/2002

Applicant/Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 28 OCTOBER 2002, AT 9.40 AM

(Continued from 14/10/02)

Copyright in the High Court of Australia

__________________

MR P.M. GWOZDECKY:   I appear for the applicant.  (instructed by the applicant/prosecutor)

MR G.T. JOHNSON:   May it please your Honour, I appear for the respondents.  (instructed by the Australian Government Solicitor)

MR GWOZDECKY:   Your Honour, I would just like to hand up a notice of discontinuance in the matter.  The applicant has put in a 417 application.

HER HONOUR:   I am sorry, I ‑ ‑ ‑?

MR GWOZDECKY:   The applicant has discontinued proceedings and put in an application ‑ ‑ ‑

HER HONOUR:   Thank you.  Well, do I need to make any formal order?

MR JOHNSON:   Your Honour, in relation to costs, the Minister does seek an order for costs.  Under Order 27 rule 1(2), as your Honour knows, when a party discontinues, the party does become liable for the applicant’s costs.  So that there not be any doubt about it or lest the view be taken that the application of that is not so clear in an application for a prerogative writ, I would ask your Honour to note the discontinuance and then to make an order that the applicant pay the respondents’ costs.

HER HONOUR:   Thank you.  Can you resist that?

MR GWOZDECKY:   Only on the basis, your Honour, that notice of the discontinuance was given to the respondent last week and it was flagged earlier a week ago.  Outside of that, when the application was lodged, the applicant was not legally represented.  I came to it as a pro bono matter and after investigations, at the earliest possible opportunity, I thought the most appropriate course was the Minister and to discontinue ‑ ‑ ‑

HER HONOUR:   When did you come into the matter?

MR GWOZDECKY:   I came into the matter on - the first date, I think, was 23 September and I was given the affidavit on the Friday for that ‑ ‑ ‑

HER HONOUR:   Yes, I remember now.  Thank you.

MR JOHNSON:   My friend has, in fact, I think, been in the matter in the last two occasions that it was before your Honour.

HER HONOUR:   Yes.  Well, when did you receive notice?

MR JOHNSON:   We received notice, your Honour, on ‑ actual notice on Friday of last week.

HER HONOUR:   But it was intimated earlier.

MR JOHNSON:   It was indicated that the applicant may withdraw, your Honour, but we did not receive ‑ ‑ ‑

HER HONOUR:   Well, you cannot complain about that.  What I would propose to do is note the discontinuance and order that the applicant pay the costs up to and including 13 October 2002.

MR JOHNSON:   Thank you, your Honour.

HER HONOUR:   There will be an order accordingly.

AT 9.44 AM THE MATTER WAS CONCLUDED