AUK15 v Minister for Immigration and Border Protection & Anor

[2015] HCATrans 314

[2015] HCATrans 314

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S237 of 2015

B e t w e e n -

AUK15

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

HON. JUSTICE MICHAEL LAURENCE BARKER, A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 26 NOVEMBER 2015, AT 10.18 AM

Copyright in the High Court of Australia

MR I.R. COLEMAN, SC:   If your Honour pleases, I appear with my learned friend, MR L.J. KARP, for the plaintiff.  (instructed by Kinslor Prince Lawyers)

MS A.M. MITCHELMORE:   If the Court pleases, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, thank you.  Now, what is the position with the appearance of the second defendant?

MS MITCHELMORE:   Your Honour, I am not instructed, nor is my instructing solicitor instructed, in relation to the second defendant, but as a result of inquiries that have been made I understand that a submitting appearance will be filed, but at the moment I am not instructed as to that.

HIS HONOUR:   Yes.  Is either party asking me to deal with this matter today?

MR COLEMAN:   No.  Would your Honour receive draft short minutes which we ask your Honour to make?

HIS HONOUR:   Is this by consent?

MS MITCHELMORE:   Yes, your Honour.

MR COLEMAN:   They are, your Honour, yes.

HIS HONOUR:   All right.

MR COLEMAN:   Might I hand that to your Honour?

HIS HONOUR:   Yes.

MR COLEMAN:   Thank you, your Honour.

HIS HONOUR:   Well, it is a rather leisurely timetable.

MS MITCHELMORE:   Your Honour, it takes into account the vacation over January, obviously, but we are content to move more quickly if – we are in the Court’s hands.

HIS HONOUR:   Well, I can vouch from experience that sometimes an attempt to move things on does not necessarily produce a quicker outcome.  So I will make some comments perhaps about the short minutes.  What further evidence can possibly be relevant?

MS MITCHELMORE:   Yes, that was a question that we had.

MR COLEMAN:   With respect, we struggle to suggest what further evidence there could be, but for more abundant caution ‑ ‑ ‑

HIS HONOUR:   Well, we do not need that caution.  There cannot possibly be any evidence that could bear on these issues.

MR COLEMAN:   With respect, I cannot suggest what that could possibly be.

HIS HONOUR:   All right.  So we take out the reference to evidence in proposed order 1.  We do not need 2.

MS MITCHELMORE:   That is right.

HIS HONOUR:   Cannot the outline of submissions be filed with the amended application?

MR COLEMAN:   If your Honour so directs, I was going to ask your Honour whether perhaps in 3 we have until 15 January rather than 1 February as a ‑ ‑ ‑

HIS HONOUR:   All right.

MR COLEMAN:   Thank you, your Honour.

HIS HONOUR:   Ms Mitchelmore, over to you.  What date?

MS MITCHELMORE:   27 January, if that is convenient.

HIS HONOUR:   Mr Coleman?

MR COLEMAN:   Whatever the day seven days thereafter is, if we could, please, your Honour.

HIS HONOUR:   January and February is always difficult, is it not?

MS MITCHELMORE:   It is 3 February, your Honour.

HIS HONOUR:   It is 3 February.  I am going to be very generous, Mr Coleman.  I will give you until the 5th.

MR COLEMAN:   I am indebted to your Honour.

HIS HONOUR:   I will list the matter for hearing before me on Tuesday, 16 February.  Does that cause anybody any difficulty?

MS MITCHELMORE:   No, your Honour.

MR COLEMAN:   My learned friend, Mr Karp, is in some difficulty that day, your Honour.   Without him I would be completely at sea.

HIS HONOUR:   Well, we all need Mr Karp, so what day ‑ ‑ ‑

MR COLEMAN:   No one more than me, your Honour.

HIS HONOUR:   What day will Mr Karp be available?

MR KARP:   Your Honour, I have commitments on the 16th, 18th and another date later in February.

HIS HONOUR:   All right.  We will make it the Monday, the 15th.

MR KARP:   Thank you, your Honour.

HIS HONOUR:   We will make it 10.15.

MR COLEMAN:   If the Court pleases.

HIS HONOUR:   Now, I will need to be convinced, gentlemen, that an error of law on the part of the Federal Court in determining an extension of time application constitutes an error of jurisdiction.  At the moment I do not see it.

MR COLEMAN:   We understand that, your Honour.  The proposed amended application will seek to raise an issue which was not raised below, which without resiling from what we will contend is the merit of the first ground currently pleaded, may well in the light of the decision of the Full Court of the Federal Court in NBMZ assume, one would hope, somewhat greater attraction to your Honour, but we hear what your Honour says; we are not unmindful of the enormity of the task that confronts us.

HIS HONOUR:   Very well, thank you.  The orders I make are as follows:

1.The plaintiff file an amended application on or before 15 December 2015.

2.The plaintiff file and serve a written outline of submissions on or before 15 January 2016.

3.The defendant file and serve a written outline of submissions on or before 27 January 2016.

4.The plaintiff file any reply on or before 5 February 2016.

5.The application be listed for hearing before me in Sydney on 15 February 2016 at 10.15 am.

6.The costs of the hearing today be costs in the cause.

MS MITCHELMORE:   If the Court pleases.

AT 10.26 AM THE MATTER WAS ADJOURNED