CITATION: Attorney-General for New South Wales v Gallagher [2006] NSWSC 420 HEARING DATE(S): 2 May 2006
JUDGMENT DATE :
2 May 2006JURISDICTION: Civil JUDGMENT OF: McClellan CJatCL CATCHWORDS: INTERIM ORDERS - vacated hearing date - visa cancelled - proceedings to remain on foot LEGISLATION CITED: Crimes (Serious Sex Offenders) Act 2006 PARTIES: Attorney-General for NSW (Pltf)
William John Gallagher (Def)FILE NUMBER(S): SC 11638/06 COUNSEL: R Cogswell SC/N L Sharp (Pltf)
A Haesler SC/R Burgess (Def)SOLICITORS: I V Knight Crown Solicitor (Pltf)
Legal Aid of NSW (Def)
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
McCLELLAN CJ at CL
TUESDAY 2 MAY 2006
11638/06
ATTORNEY GENERAL FOR NEW SOUTH WALES v GALLAGHER
JUDGMENT
1 HIS HONOUR: This matter comes before me this afternoon on the application of the parties. Since I made interim orders on 13 April 2006 the defendant has been advised that the Minister for Immigration and Multicultural Affairs has cancelled his transitional permanent visa and absorbed person visa. The defendant has also been advised that a notice setting out the reasons for the cancellation of his visa will be sent to him shortly.
2 The evidence before me discloses that the defendant acknowledges that his visa has been cancelled, with the consequence that he will no longer be permitted to remain in Australia. He has indicated that he does not intend to challenge that decision and expects to be deported by the Department of Immigration when released by the Department of Corrective Services. He understands that when removed from Australia he will be sent to the United Kingdom, where as I understand it, he is entitled to reside.
3 In these events the parties join in an application that I vacate the hearing of the matter fixed for next Monday, 8 May 2006, and make ancillary orders, including provision for the parties to approach the court to seek further relief as and when necessary.
4 I am informed that there is agreement between the parties that it is likely that the Minister will give effect to her decision at an early date, in which event, when released from custody by the State, he will remain in detention at the behest of the Minister for Immigration until he is removed from Australia.
5 As I understand the position, it is accepted by the plaintiff that if the foreshadowed events occur, orders under the Crimes (Serious Sex Offenders)Act will no longer be required, and the present proceedings may then be dismissed. However, because the necessary steps have not yet been taken, the current proceedings must remain on foot and the interim orders remain in place.
6 I have expressed my concern to the parties that if it should happen that the foreshadowed steps by the Minister do not take place within the anticipated time frame, and the question of releasing the defendant into the New South Wales community again arises, this could create particular problems. The parties are aware of those problems, but nevertheless and in particular, the defendant indicates that he wishes to pursue the course reflected in the minutes of order which the parties have agreed.
7 In those circumstances I will make the orders in the document entitled “Draft short minutes of order” which I have initialled and dated, and I will provide that the matter will be mentioned again before me at 4.30pm on Wednesday 10 May 2006.
- AGLC
- Attorney-General for New South Wales v Gallagher [2006] NSWSC 420
- Case
- [2006] NSWSC 420
- Decision Date
CaseChat Overview and Summary
The court considered the principle of procedural fairness, which required that Gallagher be given an opportunity to make representations in relation to the application to vacate the interim order. The court also had to consider the impact of the visa cancellation on the proceedings, and whether the cancellation meant that the proceedings should be stayed or dismissed. The court found that procedural fairness required that Gallagher be given an opportunity to make representations, and that the cancellation of the visa did not mean that the proceedings should be dismissed.
The court held that the interim order should be vacated and the hearing date should be set for a later date, to allow Gallagher to make representations. The court also held that the proceedings should remain on foot, and that the visa cancellation did not affect the court's jurisdiction to hear the application. The court ordered that the interim order be vacated, and that the hearing be set for a later date.
The court did not make any orders in relation to the visa cancellation or the merits of the application to vacate the interim order. The court's decision was limited to the procedural fairness and the timing of the hearing of the application. The case highlights the importance of procedural fairness in administrative law, and the need for courts to balance the interests of all parties in a case.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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