Burgess v MIMIA

[2003] HCATrans 545

[2003] HCATrans 545

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Sydney  No S306 of 2002

B e t w e e n -

BRIAN JOHN LAWRENCE BURGESS

Plaintiff

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Summons

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 18 DECEMBER 2003, AT 9.20 AM

Copyright in the High Court of Australia

__________________

MR R.F. WILKINS:   Your Honour, I appear for the respondent plaintiff.  (instructed by Dennis & Co) 

MR A. MARKUS:   If your Honour pleases, I am the solicitor for the defendants in the action, who are the applicants…..  (instructed by Australian Government Solicitor) 

HIS HONOUR:   Yes, you have an application? 

MR MARKUS:   I do, your Honour.  A summons has been filed in this Court on 16 December 2003.  I move on that summons and in support of that summons I seek to read an affidavit sworn by Kristy Lee Alexander, also on 16 December 2003 and filed on the same day. 

HIS HONOUR:   Yes, thank you, Mr Markus.  Any objection to that, Mr Wilkins? 

MR WILKINS:   No, none at all, your Honour. 

HIS HONOUR:   Yes, Mr Markus. 

MR MARKUS:   Thank you, your Honour.  Your Honour may recall having stated a case and having reserved questions for the consideration of the Full Court of this Court, pursuant to section 80 of the Judiciary Act, on 17 September this year.  Your Honour, that case stated has been fixed for hearing before the Full Court for 2 March 2004 in Canberra. 

On 9 December this year, the Full Court of this Court gave judgment in the matter of Shaw v Minister for Immigration and Multicultural Affairs.  In light of that judgment, the defendants to the action move this Court to dismiss the action on the

basis that, by majority, the judgment of Shaw has decided on the question of whether a person in the position of the present plaintiff is an alien for the purposes of the Constitution and, in so doing, in substance, have decided a threshold issue in the present proceedings.

HIS HONOUR:   Yes.  Paragraph 32, I think, of the joint judgment fixes on the date of 26 January 1949, and paragraph 190 of Justice Heydon’s judgment as well. 

MR MARKUS:   That is correct, your Honour.  Thank you for that.  Your Honour, I just noted at paragraphs 36 to 39 ‑ ‑ ‑

HIS HONOUR:   Mr Burgess was born in the United Kingdom when?  1952? 

MR MARKUS:   Mr Burgess was born in 1952.  He first arrived in Australia on 4 September 1969 and at that time he was a citizen of the United Kingdom and Colonies and he was a British subject. 

HIS HONOUR:   And the proceeding here at first instance is constituted by a statement of claim at the moment, is it not? 

MR MARKUS:   That is correct, your Honour.

HIS HONOUR:   It has produced a stated case. 

MR MARKUS:   It was re‑pleaded following some orders made by your Honour and a statement of claim was filed ‑ ‑ ‑

HIS HONOUR:   Filed on 14 May.  Yes, I have it. 

MR MARKUS:   ‑ ‑ ‑ on 14 May and the defence was filed on 6 June, your Honour. 

HIS HONOUR:   Yes.  What was sought was declaratory relief based on the absence of power under 501(2) of the Migration Act and absence of power to prevent re‑entry. 

MR MARKUS:   An injunction was also sought. 

HIS HONOUR:   And an injunction also, yes.  All right.  What do you say as to that, Mr Wilkins? 

MR WILKINS:   Your Honour, I cannot formally consent to the orders. 

HIS HONOUR:   I do not think there is any answer, really. 

MR WILKINS:   We cannot find one, if there is, your Honour. 

HIS HONOUR:   All right.  I understand that.  I should make orders 1 and 2 in the summons filed 16 December, namely, that: 

1.   The action be dismissed; and

2.   The plaintiff pay the costs of the defendants in the action, including the costs of the summons. 

That has the consequence that the basis of the case stated goes and therefore I can vacate the present listing of the case stated before the Full Court on Tuesday, 2 March 2004.  Is there anything else?  I do not think so. 

MR WILKINS:    No, your Honour. 

MR MARKUS:   If your Honour would certify for counsel? 

HIS HONOUR:   Yes, there is.  I should certify for counsel.  Thank you.  I will now adjourn to the other Court. 

AT 9.26 AM THE MATTER WAS CONCLUDED