B and C, Ex parte- Re Ruddock

[1998] HCATrans 303

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M7 of 1997

In the matter of -

An application for writs of prohibition and mandamus against PHILLIP RUDDOCK, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

And in the matter of -

An application for writs of certiorari and mandamus against A.H. SMITH, constituting THE REFUGEE REVIEW TRIBUNAL under the Migration Act 1958 (Cth)

Second Respondent

Ex parte -

B and C

Prosecutors/Applicants

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 26 AUGUST 1998, AT 10.30 AM

Copyright in the High Court of Australia

___________________

MS D.S. MORTIMER:   If it please the Court, I appear on behalf of the prosecutors.  (instructed by Erskine Rodan & Associates)

MR C. GUNST, QC:   If your Honour pleases, I appear on behalf of the Minister.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Ms Mortimer, I have read your outline of argument, of course.  There is a question about what I do with the application generally in light of where we are up to with Abebe and Eshetu - the name and its pronunciation I fear beats me.  As best we can predict, those two cases will come on for hearing before the Full Court in the November sittings of the Court.  Directions have been given by Justice Gummow to achieve that result.  They will deal, perhaps, with the questions of validity and the questions of the ambit of the Federal Court jurisdiction, as well also as dealing with some questions raised in Eshetu about Wednesbury unreasonableness.  Now, in the light of that, what do you say I should do with the present application?

MS MORTIMER:   In my submission, your Honour, it would be appropriate for the matter to be adjourned - stood over.  Although this is not a case that involves any of the critical issues of law in Eshetu, it is a case that involves the remitter issue which, in my submission, it is reasonable to believe may be decided in Abebe’s Case. 

HIS HONOUR:   It does not raise an Eshetu point?

MS MORTIMER:   No, it does not, your Honour, no.  The grounds in the draft order nisi, and as your Honour will have seen from my submissions, are really grounds that are not available to this applicant in the Federal Court and, therefore, the ability of this Court to remit depends precisely on the issue about the width of the Federal Court powers.  So, in my submission, it is appropriate for the matter to be adjourned.

HIS HONOUR:   Yes.  Well, Mr Gunst, what do you say I should do?

MR GUNST:   We need to say something as a preliminary matter, your Honour, and I will state it shortly. If your Honour is not disposed to dismiss the application today then, clearly, the appropriate course is to stand the matter over. It is conceded on behalf of the prosecutors that there are no grounds raised in this Court that are not excluded grounds by Part 8 of the Migration Act.I will make that sentence a little simpler, your Honour. All of the grounds on which the prosecutors rely in this Court are grounds which are excluded grounds under Part 8 before the Federal Court, as is conceded. So, it raises the question of the power or the jurisdiction of the Court on a remitted matter very directly, and that is one of the two issues raised squarely in Abebe that the Full Court will hopefully determined in November and decide shortly thereafter.

We would desire to say this at the earliest opportunity.  Any application for prerogative relief is discretionary and we would put two matters to your Honour as to why in fact the discretion would not be exercised.  If your Honour was persuaded of that view, we would submit that it would be more appropriate for your Honour to dismiss the application here and now rather than merely standing it over, involving further court time and practitioners’ time. 

The two points that we wish to advance are these - we take it your Honour is familiar with the authorities to the effect that the issue of a prerogative writ is discretionary.  We would refer to Comalco Aluminium and Re Wilcox; Ex parte Venture Industries, for example.  Your Honour, the first point is that this case is very clearly merely an attempt to agitate the facts.  The very affidavit that was filed yesterday exhibiting that raft of material obtained from the RRT going to the situation in the Punjab indicates in the clearest terms - and one really only has to read the RRT’s decision and the affidavit material filed in this Court to come to the conclusion that all that is being sought is an agitation of the facts.    If your Honour was of that view, it would clearly not be an appropriate case to issue a prerogative writ.

The second point, of course, is the issue of delay, and there has been very substantial delay in the prosecutors’ application to bringing this matter on.  The originating affidavit of the solicitor, together with the draft order nisi, were filed in March of last year.  The affidavit of the solicitor is sworn 13 March 1997 and filed either on that day or shortly thereafter in any event.  There was some correspondence between the solicitors not to the main point, we might say, merely seeking the respondents’ view about powers on remission but, in any event, there has been, as we say, well over a year in doing anything about it and, in the end, on the question of discretion, we would say that your Honour is entitled to say the issue of a prerogative writ is discretionary; the prosecutors have shown no keenness or diligence in bringing the matter forward, coupled with the fact - - -

HIS HONOUR:   There is not much incentive for them to bring it forward, is there, Mr Gunst?  I mean, they are here.  Bringing it forward carries with it the risk that they may not be here.  The incentive for bringing it on quickly is perhaps more in your clients’ interest than theirs, is it not, or am I being unduly cynical, perhaps?

MR GUNST:   I would not want to say your Honour was being unduly cynical but - - -

HIS HONOUR:   Simply cynical.

MR GUNST:   - - - clearly, in practical terms there is an issue there.  It is not, in fact, for my client to bring it forward.  The application is, in terms, an ex parte one, although the Court’s practice now is to require the prosecutors to give notice to those instructing me and that has been done and we are here, but it lies fairly and squarely in the prosecutors’ camp to bring it forward.  There has been really a very extraordinary delay.  If this was an application for an interlocutory injunction in a commercial dispute, a delay of more than a year, one would very easily think, would be fatal and, likewise, with an application for the issue of a prerogative writ, in our submission.

Your Honour, we say that the matter is just a reagitation of the facts.  Your Honour would need to read the material in respect of that, but we put that very forcefully.

HIS HONOUR:   In fact, I have read the material.  I will not say that I would not have to reread it, Mr Gunst, but I have read it, I have some understanding of the way in which the case is put.  If those are the two substantial points that you put in favour of dismissal today, the inclination of my mind is simply to stand it over and let us debate it.  I know both the applicants and your side would say that Eshetu will not bear on it.  On one view of the issues raised in Eshetu, if the Court gets to that set of issues, there may be some considerations that might bear on this, but leave that out of account altogether.  I think that pending hearing and determination of Abebe, I would be minded to adjourn it.  Is there anything further you would wish to say?

MR GUNST:   No.  We are in your Honour’s hands in the end.  We put the submission at the earliest opportunity.

HIS HONOUR:   Yes, I understand, thank you.

MR GUNST:   But we hear what your Honour says.  If your Honour pleases.

HIS HONOUR:   The application will be adjourned to a date to be fixed; either party will have liberty to apply on not less than 72 hours notice in writing to other parties.  If I reserve the costs and certify for the attendance of counsel, is there anything else that counsel would require?

MS MORTIMER:   Your Honour, just two matters.  The first is that we sought the consent of the Minister yesterday to some orders in relation to confidentiality to preserve the identities of the applicants.  There is a discrepancy, your Honour, in the practice of the RRT and the practice of the Federal Court in this relation.  The RRT is very conscious not to identify parties and, for some reason, that practice is not carried over into the Federal Court for some reason.  Our contention is that it is a practice that ought to be encouraged because the.....claims which are part of the reason that peoples’ identities are concealed are just as likely to arise when the matter is agitated on review.

I understand my learned friend has no objection on behalf of the Minister to these orders and with your Honour’s leave I would seek to hand  up a copy of the orders we propose.

MR GUNST:   The Minister consents to the making of the orders, your Honour.

HIS HONOUR:   Yes.  I must say paragraph 5 I find, (a) difficult to understand and, (b) I wonder about its operation, notably, the tag on 5(b) “or otherwise for official purposes”. 

MS MORTIMER:   I concede, your Honour, that is probably too broad and vague.

HIS HONOUR:   I must say, Ms Mortimer, understanding as I do the desire for confidentiality of identifying material, I am very reluctant to make orders that are any wider than will achieve that result and only that result.  I can understand why the applicants might be fearful if their identity became known and if they were to lose the application, but I would not wish the orders to go beyond that unless you could explain to me why they should.

MS MORTIMER:   No, your Honour, all we seek to achieve is that - certain standard practices in this Court, for example, the publication of transcript on the Internet and the publication of judgments on the Internet, things to which there is ready access by anybody, are undertaken in a way that does not identify.  So, it is only the identification in the publication or in public records that we are concerned with.  So, we are content for your Honour to amend the orders as your Honour sees fit to achieve that.

HIS HONOUR:   Would it be sufficient for your purposes if I were to make orders in terms of minute 1:  the title of this proceeding be amended to describe the applicants as B and C; 2 the amendment ordered in paragraph 1 operate nunc pro tunc from the date upon which the originating affidavit was filed in the High Court.  Do you need 3?

MS MORTIMER:   No, your Honour.

HIS HONOUR:   4 would become 3.  No person be granted access to any part of the file of this proceeding maintained in the Court Registry which would identify the applicants without first having obtained leave of a Justice of the Court.  Do you really need 5?

MS MORTIMER:   Would your Honour just pardon me a moment while I get instructions.

HIS HONOUR:   Yes.

MS MORTIMER:   Provided, your Honour, that there is no mention - and it would be, I assume, now in error - by either myself or my learned friends in any transcript to the applicants’ names.  For instance, I have put it in my submissions and that would need to be ‑ ‑ ‑

HIS HONOUR:   Then that will not be searchable.

MS MORTIMER:   No, your Honour.

HIS HONOUR:   The transcript, I think, has not yet mentioned their names.  The title of the proceeding will not mention their name and I do not think we need 5.  I do not want to be difficult about it, but I do hesitate to make orders broader than we really need to achieve the particular result.  They inevitably go wrong and people end up getting into all sorts of trouble as a result of it.

MS MORTIMER:   Yes, your Honour, and I understand that the proceedings are fundamentally in public.  Perhaps what we can do, your Honour, is we will maintain some vigilance about the way that the terms are used and if such an order becomes necessary, then we can reapply.

HIS HONOUR:   You have your liberty, yes.

MS MORTIMER:   Your Honour, the last matter is I had drawn a new draft order nisi because your Honour will have seen from the submissions that they have been confined rather significantly from the original draft.  Now, I was proposing to hand a copy up to your Honour and to my learned friend and then I have realised that it has the applicants’ names on it. 

HIS HONOUR:   Then no doubt you can file it and provide it to your opponent over the next little while, Ms Mortimer.

MS MORTIMER:   Yes.  But all it seeks to do is confine it in the way my submissions do.  If your Honour pleases.

HIS HONOUR:   Thank you, Ms Mortimer.

There will be orders then as follows:

1.         Application adjourned to a date to be fixed.

2.Title of proceeding amended to describe applicants as B and C.

3.Amendment ordered in the immediately preceding order operate nunc pro tunc from the date upon which the originating affidavit was filed in the Court.

4.No person be granted access to any part of the file of this proceeding maintained in the Court Registry which would identify the applicants without having first obtained leave of a Justice of the Court.

5.Either party have liberty to apply on not less than 72 hours notice in writing to other parties.

6.        Reserve costs.

7.        Certify.

MR GUNST:   If your Honour pleases.

MS MORTIMER:   If your Honour pleases.

HIS HONOUR:   Thank you.  I will adjourn.

AT 10.48 AM THE MATTER WAS ADJOURNED