Callover, Melbourne
[2005] HCATrans 159
[2005] HCATrans 159
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne
CALLOVER OF 31 IMMIGRATION
MATTERS
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON WEDNESDAY, 16 MARCH 2005, AT 9.33 AM
Copyright in the High Court of Australia
HIS HONOUR: Before I begin the matters this morning, the course I propose to take is to deal first with any consent applications, if there are any, then to deal with any matters in which the applicant appears or is represented and then to deal with the remaining matters in the list in the order in which they were issued.
At the outset I should say that I have a certificate from the Deputy Registrar that she has been informed by the Australian Government Solicitor, solicitors for the Refugee Review Tribunal and members of that Tribunal, that in the following matters that Tribunal and its members will abide by any order of the Court save as to costs, namely, matters M69/2004, M70/2004, M84/2004, M85/2004, M106/2004, M118/2004, M124/2004, M136/2004, M141/2004, M160/2004, M170/2004, M185/2004, M189/2004, M195/2004 and M220/2004.
She further certifies that she has been informed by Blake Dawson Waldron, solicitors for the Refugee Review Tribunal and the Migration Review Tribunal and members of either of those Tribunals, that where those Tribunals or their members are named as respondents they will abide by any order of the Court save as to costs in matters M79/2004, M86/2004, M94/2004, M99/2004.
Finally, she has been similarly informed by Clayton Utz, solicitors for the Refugee Review Tribunal and the Migration Review Tribunal and the members of those Tribunals, that where those Tribunals or any members of the Tribunals are named as respondents, they will abide by any order of the Court save as to costs in matters M73/2004, M91/2004, M123/2004, M149/2004, M150/2004, M155/2004, M158/2004, M162/2004, M164/2004, M206/2004 and M207/2004.
As I said, the course I propose to follow is to deal first with any consent applications that there are, then to deal with matters in which the applicants are present or where they are represented, and then to deal after that with any matters remaining in the list. So, first, are there any consent applications?
At 9.37 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M136/2004.
MR C.J. HORAN: Your Honour, if I could mention matter No 13 in the list, M136/2004. I appear for the respondent in that matter, your Honour. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, Mr Horan.
MR K. KARAPANAGIOTIDIS: Your Honour, I seek leave from the Court to appear in regard to this matter. (instructed by the applicant)
We have taken instructions from the applicant. They have been granted permanent protection visas, so they are seeking to consent to the withdrawal of this matter.
HIS HONOUR: Yes. You are in fact from the Asylum Seeker Resource Centre, are you not, Mr Karapanagiotidis?
MR KARAPANAGIOTIDIS: Yes, your Honour.
HIS HONOUR: Then, Mr Horan ‑ ‑ ‑
MR HORAN: Your Honour, I have some consent orders which the parties have agreed to.
HIS HONOUR: Yes. Thank you. If I make orders in the terms of the consent that is handed to me, which I will initial and may remain on the file, are the parties content with that?
MR HORAN: If the Court pleases.
MR KARAPANAGIOTIDIS: Yes, your Honour.
HIS HONOUR: There will be orders in those terms. I have initialled the minutes. Those may remain with the file. Thank you very much for your assistance.
AT 9.38 AM THE MATTER WAS CONCLUDED
HIS HONOUR: Are there any other consent applications? No? Now, it is going to be perhaps a little awkward to make sure that I deal with all of the applicants who are here in person, but when we get to a convenient point I will ask whether I have managed to forget anyone, or omit anyone, and we can come back and sort that out.
At 9.39 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant M69/2004.
HIS HONOUR: Let us perhaps begin with M69/2004 – that is one of yours, I think, Mr Horan. The applicant is, I believe, here in person but needs the services of an interpreter. Now, is the applicant here in matter M69/2004? Would you be good enough to come forward, sir. You are going to assist the applicant as well, are you?
MR K. KARAPANAGIOTIDIS: Yes, I just picked up his case in the last minute, your Honour. (instructed by the applicant)
HIS HONOUR: Do you want any time?
MR KARAPANAGIOTIDIS: I would seek leave first that I may appear on his behalf. No, no, I am happy to discuss this matter with the Court.
HIS HONOUR: Now, do we need an interpreter sworn? I think this gentleman may require an interpreter.
MR KARAPANAGIOTIDIS: Yes. An interpreter, definitely yes, your Honour.
HIS HONOUR: What language do we need?
APPLICANT M69/2004: Sinhalese.
HIS HONOUR: Sinhalese? Then do we have the Sinhalese interpreter present in Court yet? No? We, needless to say, do not have the requisite interpreter. Look, I think I would prefer to leave it over until we have the interpreter present.
MR KARAPANAGIOTIDIS: That is right, your Honour.
HIS HONOUR: Then the applicant can know quite what is happening. I am sorry to do it in this instalment process, but I think it is inevitable until we have the interpreter.
MR KARAPANAGIOTIDIS: That is okay.
HIS HONOUR: So I will take your case in just a moment, if I may.
AT 9.41 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY
At 9.41 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M91/2004.
HIS HONOUR: The next one where I am aware of an applicant being present is M91/2004. Ms Macdonnell, I think that is one of yours, is it not?
MS J.K. MACDONNELL: Yes, your Honour. (instructed by Clayton Utz)
HIS HONOUR: Now, I think here – do we need an interpreter?
MR KARAPANAGIOTIDIS: Yes, he does, your Honour.
HIS HONOUR: We do have a Punjabi interpreter present in Court, I thought, a moment ago. Perhaps, Mr Interpreter, would you be good enough to come forward and take the affirmation, or oath, as appropriate? Would you prefer to take an affirmation?
THE INTERPRETER: Affirmation.
HIS HONOUR: Yes.
MOSHIAR SINGH RAI, affirmed as interpreter:
HIS HONOUR: Thank you, Mr Interpreter. Would you state your full name, please?
THE INTERPRETER: Moshiar Singh Rai.
HIS HONOUR: Thank you, and if you would be good enough to interpret to the applicant. Now, Ms Macdonnell, you appear for the respondent?
MS MACDONNELL: If it please the Court, your Honour.
HIS HONOUR: We have the application by summons of 10 March 2005 seeking in effect to terminate the proceeding, or the application, summarily. Is that right?
MS MACDONNELL: Correct, your Honour.
HIS HONOUR: Mr Interpreter, would you be good enough to explain that the Minister’s application is to determine, that is, to stop the application, summarily. Now, Mr Karapanagiotidis, what attitude do you say?
MR KARAPANAGIOTIDIS: Your Honour, unfortunately I am not in a position to – because this issue is going to come up all day – to specifically address the matter in particular cases, because I do not have the instructions and I am not in a position to do so. However, broadly, I do wish to raise a concern that each of the applicants that I will be standing up for today all received notification on Friday, and I am deeply – this is the Friday just passed. I am deeply troubled that matters that have been on foot for numerous months, that the applicants were all given less than two days notice that there was going to be some decision to try to strike out the proceeding.
A number of these applicants have got pending…..pro bono applications, VLA applications pending. A couple of these actually have counsel, who would have been here if they had been given notice that there was an intention to strike out proceedings. So I would be seeking in this case, and I will be consistently arguing all day, that these matters should be remitted to the Federal Court, or, if the Court should want to hear the strike‑out proceedings, that they should be adjourned so that the applicants may be afforded the opportunity to have counsel present to actually argue the merits of their case.
HIS HONOUR: Yes. Now, Ms Macdonnell, this seems to be a recurring question. First, what do you say about the service of the interlocutory application? What material do I have which would reveal when it was served?
MS MACDONNELL: Your Honour, I believe that there were – would you excuse me a moment, your Honour? Yes, I am instructed, your Honour, that an affidavit of service was filed.
HIS HONOUR: Can you direct me to the affidavit? That is what I need to know.
MS MACDONNELL: A copy was not returned to the Registry ‑ ‑ ‑
HIS HONOUR: Now, there is an affidavit of Mr Mosby, Tom Barr and…..Mosby, sworn 15 March 2005, which deposes on information and belief to the summons having been served on 11 March at about 10.50 am.
MS MACDONNELL: Your Honour, I am instructed there was also an affidavit of service that was filed in the Registry. Your Honour, I do not have a copy.
HIS HONOUR: Well, it is going to be of some assistance to me if counsel are in a position to tell me when service occurred, what proof there is of service and where I go. I have 31 of these matters to deal with today, and I have a lot of people who are occupying a lot of their time sitting in the back of the Court. Now, we need to be rather more efficient about the way in which we deal with them. So what is the material which reveals service?
MS MACDONNELL: The affidavit before your Honour that your Honour read from.
HIS HONOUR: Of Mr Mosby?
MS MACDONNELL: Of Mr Mosby regarding his belief as to service.
HIS HONOUR: Yes. Now, am I right in thinking that rule 28.02.2 would be the relevant rule that fixes time? And then, I think, we need to take account also of a rule which determines how you count time, which is rule 401 – and I can only ever do these calculations with a calendar in front of me – but if it is served on 11 March – that is the Friday – we have, do we not, only two days of service, effectively, which is short served?
MS MACDONNELL: Yes, your Honour. Apart ‑ ‑ ‑
HIS HONOUR: Then the applicant seeks time. The Minister short‑serves the process. Why should the applicant not have time?
MS MACDONNELL: Your Honour, exhibited to the affidavit to which your Honour referred and marked “TBM 12” is a letter that my instructing solicitors sent to the applicant in September 2004, which advised the applicant that the first respondent contended that his application was out of time either under the Act or the High Court Rules, and that the first respondent objected to the application on that ground. It also advised the applicant that in the absence of appropriate evidence and compelling reasons he gives for the delay, that my instructing solicitor is expected to receive the Minister’s instructions to make an application to dismiss the matter when it is first listed in this Court, and also gave the applicant certain information regarding avenues for legal assistance.
MR KARAPANAGIOTIDIS: Your Honour, that is a pro forma letter that is provided to every single High Court applicant and does not ‑ ‑ ‑
HIS HONOUR: I will come to you in a moment, Mr Karapanagiotidis. Yes. That gives him some warning, but the application to terminate these proceedings summarily is the application by summons. His representative tells me that he would wish to have explored at least the possibility of obtaining legal representation. Now, he is given less than the time fixed by the Rules of Court. What do you say I should do?
MS MACDONNELL: Well, if your Honour is not minded to ‑ ‑ ‑
HIS HONOUR: No, I am asking you what you say I should do.
MS MACDONNELL: Well, your Honour, if the matter is not to be dealt with on the basis that it is capable of summary dismissal today, the first respondent would seek that it be adjourned to a date where the application can be dealt with on that basis.
HIS HONOUR: Yes. It is unfortunate that people are brought in unnecessarily. It is unfortunate that I set aside time which ordinarily should be spent writing judgments and doing the principal work of this Court simply because summons are not served in due time. It is unsatisfactory. If I adjourn the matter to a date to be fixed, because I cannot, at the moment, consistent with the other requirements of the Court calendar, indicate a time. No, I will simply stand this matter in the list temporarily until I can work out a time when I will give you.
MS MACDONNELL: Thank you, your Honour.
MR KARAPANAGIOTIDIS: Thank you, your Honour.
HIS HONOUR: If you would be good enough to just ask the applicant to remain a little longer.
MR KARAPANAGIOTIDIS: Yes, your Honour.
HIS HONOUR: It will not, I hope, be too long.
MR KARAPANAGIOTIDIS: Thank you, your Honour.
AT 9.53 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY
HIS HONOUR: Now, Ms Macdonnell, how many of your cases are going to be in like case? Are we going to encounter this problem throughout the morning, because, if we are, let us get on top of it now and deal with it so that some of these people can get away.
MR KARAPANAGIOTIDIS: Your Honour, if it would be of assistance, this issue comes up in all of the applicants that I am seeking leave to appear for today. There are about 10 or 11 cases of the exact same short notice being served on each of them.
HIS HONOUR: Right. Well, I will presently give you a moment to sort out which matters they are. Mr Horan, can I ask you, are we going to encounter this problem in your matters?
MR HORAN: Your Honour, in all the matters in which summonses have been filed, as opposed to – so the ones which the Minister submits should remain in this Court rather than being remitted – the summons was served, at the earliest, last Friday. It was posted on Thursday. So it will apply, and I think that applies to seven of the matters in which I appear.
HIS HONOUR: Is there a satisfactory explanation for why that has occurred? Have we given you too short notice of it?
MR HORAN: I am not sure, your Honour. One issue may be that in one sense some of the issues sought to be raised by the summons might not be issues that, strictly speaking, require a summons in any event, given the nature of the ‑ ‑ ‑
HIS HONOUR: I understand that, but you will recall from earlier occasions ‑ ‑ ‑
MR HORAN: I do.
HIS HONOUR: ‑ ‑ ‑ most especially when we have litigants in person, I have been very concerned that they should receive a formal piece of paper that tells them, even with all that opaque language that the law employs, that their application is facing summary disposition.
Now, can we, in the space of the next 10 minutes – or shall we say 15 minutes – if I leave the Bench, can we sort out which of these files are going to face this fate? I will not go on with them if they are short‑served unless there is some particularly persuasive reason for doing so. If the parties want me to deal with them, if they are ready to argue them, of course I will deal with them, but if they have been short‑served and the parties say, “No, I want time”, time they will have.
If I give you, say, until 10 past 10, can counsel sort out with the applicants what the position is? Would it be better if I said until quarter past?
MR HORAN: Your Honour, I can tell your Honour now which applications – because it is all of the matters in which the Minister has filed a summons.
HIS HONOUR: Yes, but I want you to talk to the applicants, or have your solicitors talk to the applicants.
MR HORAN: To the applicants, yes. If the Court pleases.
HIS HONOUR: So that the applicants know what is going on. They have some slight interest in what is to happen, I think. So what I will do is I will leave the Bench, I will come back at quarter past. In the meantime, can you and your instructing solicitors work out which ones have to go off. What I will try to do in the meantime is fix a time – it will have to be in the week commencing 11 April – and I will send word in which date I have in mind, and I do not want the applicants to leave until we have sorted it out. So I am sorry, I want the applicants to remain here until we sort it out and sort out where we are going, because later I do not want it said, “We didn’t know quite what was happening”. In the meantime. I will leave the Bench and come back at quarter past 10.
AT 9.58 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.17 AM:
HIS HONOUR: Now, where have we got to? There is a fight amongst counsel at the Bar table to see who wants to stand up ‑ ‑ ‑
MR HORAN: I will stand up, your Honour.
HIS HONOUR: ‑ ‑ ‑ and deal with the problem. Yes, Mr Horan; you are bold.
MR HORAN: Seeing as I have No 1 in the list and following, I or my instructing solicitors have spoken to representatives for the following matters in respect of which summons have been filed, and in each of them the applicant seeks further time to respond to the issues in the summons.
HIS HONOUR: Yes.
MR HORAN: The matters are No 1 in the list, Applicant M69/2004, and I think Mr Karapanagiotidis is appearing on behalf of that applicant.
HIS HONOUR: Yes.
MR HORAN: No 2 in the list, M70/2004, and No 12 in the list, M124/2004. I understand that Mr Fernandez is representing the applicants in those.
HIS HONOUR: Yes.
MR HORAN: No 14 in the list is M141/2004, and the applicant has a solicitor present from Ravi James. Matter No 20, M160/2004, matter No 23, M170/2004, matter No 26, M195/2004 and matter No 31, M220/2004. In each of those four matters, again, Mr Karapanagiotidis appears for the applicants.
At 10.19 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M124/2004.
HIS HONOUR: Right. Now, I think Mr Fernandez is in Court. Mr Fernandez, you heard what has been said about matter M124. In that matter you appear for the applicant, is that right?
MR T.A. FERNANDEZ: If it please the Court, I appear for the applicant in this matter. (instructed by the applicant)
MR C.J. HORAN: If it please the Court, I appear for the respondent in this matter. (instructed by Australian Government Solicitor)
HIS HONOUR: We will deal separately with matter M150, which is, I think, the other matter in which you are engaged. For the moment, M69, M70, M124, M141 – now, in matter M141 is it Mr Singh?
At 10.20 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M141/2004.
MR J.G. SINGH: Yes, your Honour. I appear for the applicant in this matter. (instructed by Ravi James)
At 10.20 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant M69/2004.
At 10.20 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicants M70/2004.
At 10.20 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M124/2004.
At 10.20 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M160/2004.
At 10.20 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M170/2004.
At 10.20 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M195/2004.
At 10.20 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M220/2004.
MR C.J. HORAN: If it please the Court, I appear for the respondent in these matters. (instructed by Australian Government Solicitor).
HIS HONOUR: Now, in each of those matters if I adjourn the application over to 13 April 2005 at 9.30 in Melbourne, or such other time as may be notified in writing. For the moment I am minded to reserve the costs. Is there any other order that is necessary?
MR HORAN: The only other possible question is whether directions should be made for filing of material on behalf of the applicants in respect of both affidavit material in support of, for example, an extension of time application or any further particulars of grounds of review – each of which may be relevant to some of the issues to be raised at an adjourned date.
HIS HONOUR: What date do you suggest, or what direction do you suggest?
MR HORAN: Well, given the time, it may be that the more time allowed the better, from the applicant’s point of view. So perhaps one week before the date of the 13th.
HIS HONOUR: With Easter intervening, I wonder whether we may not be safer to say Friday, 8 April. Other than directing affidavits, what else do you say I should direct, Mr Horan?
MR HORAN: The only other matter is whether your Honour would be assisted by a brief outline of submissions by the respondent. It may not be essential. I know in previous matters there were extensive submissions filed on the general legal principles, and they could simply stand as submissions in all of the matters, but it might be that a short outline which summarises the application of those principles to each of the cases ‑ ‑ ‑
HIS HONOUR: I am not minded to direct written outlines of argument. I would say only to the parties that I have, on earlier occasions, looked at some of these questions. Whether I have looked at all of them will be for the parties later to say, but I have looked at them, in particular, a matter of M31/2004, where questions about extension of time or applications for certiorari and mandamus and the utility of prohibition were considered. Reference might also usefully be had to Justice McHugh’s decision in Re Ruddock; Ex parte Reyes 177 ALR 484.
MR HORAN: Can I just add to that, your Honour, for the benefit of applicants, a reference to a decision of your Honour and Justice Kirby on an application for leave to appeal in Applicant S434/2003 [2004] HCA Trans 398, that judgment delivered on 8 October 2004, which deals with the question of abuse of process, which is a further issue raised by the summonses filed on behalf of the Minister.
HIS HONOUR: Yes. Well, subject to anything that the parties may say, I will direct in each of the matters I have identified, namely, M69/2004, M70/2004, M124/2004, M141/2004, M160/2004, M170/2004, M195/2004 and M220/2004:
1. Any further affidavit on behalf of the applicant, whether in support of the application or in opposition to the Minister’s application, is to be filed and served on or before 4.30 pm Friday, 8 April 2005;
2. Adjourn the application and the Minister’s application to 13 April 2005 at 9.30 in Melbourne or such other time as may be notified in writing to the parties;
3. Reserve costs.
Do either counsel or representatives wish to be heard about the form of those orders?
MR HORAN: No, your Honour.
MR KARAPANAGIOTIDIS: No, your Honour.
HIS HONOUR: Very well. Thank you. The applicants involved in those matters need not remain further.
AT 10.27 AM THE MATTERS WERE ADJOURNED
UNTIL WEDNESDAY, 13 APRIL 2005
HIS HONOUR: Now, what other applications are we to deal with in that or identical way, Ms Macdonnell?
At 10.27 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anors; Ex parte Applicant M77/2004.
At 10.27 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anors; Ex parte Applicant M79/2004.
At 10.27 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anors; Ex parte Applicant M86/2004.
At 10.27 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anors; Ex parte Applicant M94/2004.
At 10.27 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anors; Ex parte Applicant M99/2004.
MR E.J.C. HEEREY: Your Honour, I appear for the respondent in matters M77/2004, M79/2004, M86/2004, M94/2004 and M99/2004. (instructed by Blake Dawson Waldron)
HIS HONOUR: Yes, Mr Heerey.
MR HEEREY: Our position is slightly different. We have the same problem that, well, in our case we do not have the formal affidavit of service but I can indicate to your Honour that if we were to file such an affidavit it would exhibit all these letters to show that the relevant summonses were all posted on 8 March. Now, that ‑ ‑ ‑
HIS HONOUR: What does that do about service? Does it mean served within time or short-served?
MR HEEREY: I say it was within time, your Honour, because, not including the day of posting and the public holiday on Monday, they were still all posted five days before today.
HIS HONOUR: Is that including the weekend?
MR HEEREY: No, it is not including the weekend.
HIS HONOUR: You do not count weekends or public holidays ‑ ‑ ‑
MR HEEREY: No.
HIS HONOUR: ‑ ‑ ‑ and a time fixed under five days.
MR HEEREY: That is correct, your Honour. I am counting from day of postage, being last Tuesday, 8 March, so we do not count that date, but we count Wednesday the 9th, Thursday the 10th, Friday the 11th, we do not count the weekend or Monday the public holiday, Tuesday the 15th and then today is Wednesday the 16th.
HIS HONOUR: Yes.
MR HEEREY: So all five matters were – the summons in each matter was posted that period before the hearing before five days. If the deficiency then is the lack of a formal affidavit, my submission, your Honour, is that that is something we could attend to as a matter of great urgency so as to possibly avoid the matter clogging up the Court’s time on another date, but for the situation of service, your Honour.
HIS HONOUR: Yes. Well, what do you say I should do with these last five matters, Mr Heerey?
MR HEEREY: Your Honour, within those five I should also point out that two of them are the subject of notices of discontinuance.
HIS HONOUR: Yes, that is matters M77 and M99?
MR HEEREY: That is correct, your Honour. I should point out ‑ ‑ ‑
HIS HONOUR: Is there any reason to treat those as anything except gone and finished?
MR HEEREY: Those notices of discontinuance were not filed by consent on the question of costs. So technically – I raise that as a matter of ‑ ‑ ‑
HIS HONOUR: Yes. Do not costs follow the event?
MR HEEREY: Well, that would be my submission, your Honour.
HIS HONOUR: But do the rules not provide for that? I cannot remember.
MR HEEREY: Yes, they do, your Honour. I would say that it is rule 27.10.6.
HIS HONOUR: Yes.
MR HEEREY: So if those two matters were dismissed with costs, then my submission is that nothing further would need to be done for those two matters.
HIS HONOUR: Yes.
MR HEEREY: That then leaves list Nos 34, 35 and 36. Subject to satisfying the Court as to the question of service, I am prepared to run those cases today, your Honour. My instructors can attend to such affidavits this morning.
HIS HONOUR: Well, they may have a little time to do so, Mr Heerey, because I will deal with the other matters then, because these will have to be treated as contested matters – 34, 35 and 36.
MR HEEREY: So that we can get on with the task, your Honour, perhaps we should arrange to depart the Court now and get on with the task of making those affidavits or ‑ ‑ ‑
HIS HONOUR: I always thought that counsel does not have to disappear to do an affidavit of service, do you? Solicitors might.
MR HEEREY: Yes, of course, your Honour.
HIS HONOUR: Well, they can get on with it. You can hang around, Mr Heerey. It is the joys of being at the Bar.
MR HEEREY: Thank you, your Honour. We will attend to that.
HIS HONOUR: And see where we get to.
AT 10.32 AM THE MATTERS WERE ADJOURNED
UNTIL LATER THE SAME DAY
HIS HONOUR: Now, Ms Macdonnell. Where are we up to with yours?
At 10.32 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anors; Ex parte Applicant M73/2004.
At 10.32 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M149/2004.
At 10.32 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M150/2004.
At 10.32 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anors; Ex parte Applicant M155/2004.
At 10.32 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M158/2004.
At 10.32 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M162/2004.
At 10.32 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M164/2004.
At 10.32 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M206/2004.
MS J.K. MACDONNELL: Your Honour, I appear for the respondent. (instructed by Clayton Utz)
The issue in relation to the date of service arises in the matters No 3 in the list, M73/2004, No 16 in the list, M149/2004, No 17 in the list, M150/2004, No 18 in the list, M155/2004, No 19, M158/2004, No 21, M162/2004, No 22, M164/2004 and No 28 in the list, M206/2004. However, it is somewhat complicated, your Honour, insofar as in three of those matters service has not – neither of the summons nor, it is my understanding of court correspondence, been able to be effected ‑ ‑ ‑
HIS HONOUR: Why is that? Or how is that ‑ ‑ ‑
MS MACDONNELL: It has been – in relation to the matter in the list No ‑ ‑ ‑
HIS HONOUR: The letters have been returned to sender.
MS MACDONNELL: No 3, the Court’s letter to the applicant was returned unserved. In relation to 16 on the list, it was unable to be served because the plaintiff was not at the address. In relation to No 22 in the list, the Court’s correspondence was returned. Insofar as service of the summons, it was left in a mail slot.
HIS HONOUR: Yes. There are three with that added complication?
MS MACDONNELL: Yes, your Honour.
HIS HONOUR: But you mention eight matters in which, if service has been effected by the steps that have been taken, it would be short service.
MS MACDONNELL: All of those eight, of which three are complicated, yes, your Honour.
HIS HONOUR: Yes. Now, who, if anyone, appears for the applicants in those eight matters that we have mentioned, Nos M73, M149, M150, M155, M158, M162, M164, M206?
MR T.A. FERNANDEZ: May it please the Court, I appear for the applicant in matter M150/2004. (instructed by Clayton Utz)
HIS HONOUR: Sorry, you are in M150?
MR FERNANDEZ: Just the one matter.
HIS HONOUR: Just the one? Yes.
Mr K. KARAPANAGIOTIDIS: If it please the Court, I appear for the applicant in matters M158/2004 and M206/2004. (instructed by the applicant)
Clayton Utz – there are two other matters which they did not raise with you right now, which are M91/2004 and M123/2004, which I am also appearing for, which Clayton Utz are acting for the respondent on. I am not sure whether they are going to raise those today, as to how they should be dealt with.
HIS HONOUR: Well, let us leave those aside for the moment if we can, M91 and M203. We will come back to those. Can we deal with this batch?
MR KARAPANAGIOTIDIS: Yes, your Honour.
MS MACDONNELL: Your Honour, M91 was the first matter that was raised before your Honour when the issue arose, so it would be added in.
HIS HONOUR: Right. So M91, which is matter No 7. Right. That leaves aside M203. So we are now dealing with M73, M91, M149, M150, M155, M158, M162, M164, M206. We have, therefore, representation in four of those matters. In three of them, there is a question about service. Is there anybody here in matter M155?
MR K. KARAPANAGIOTIDIS: Yes, your Honour, I am also appearing in this matter. (instructed by the applicant)
HIS HONOUR: That is one of yours, too?
MR KARAPANAGIOTIDIS: Yes, your Honour.
HIS HONOUR: Is there anybody here in M162?
MR K. KARAPANAGIOTIDIS: That is also me, your Honour. (instructed by the applicant)
HIS HONOUR: Also?
MR KARAPANAGIOTIDIS: Yes.
HIS HONOUR: Right. So, we are left, are we, with M73, where there was a letter returned to sender, M149 and M164, is that right? It is like running an audit stocktake. I think I am right.
In the matters in which there is representation I would be certainly minded to make orders of the general kind previously announced. In the three matters where we have no one appearing at the moment, M73, nobody has signed in, M149, nobody has signed in. Subject to what you may say, Ms McDonnell, I am minded to put those over to deal with at the same time, but in those three matters there would be an additional order that a copy of today’s order of adjournment be served on the applicant.
Now, you will need to correct me if I am wrong, but my impression is that you can effect valid service at the address the applicant gave on the applicant’s initiating process and if the applicant has changed address that is, I am afraid, a matter for the applicant. Am I right in thinking you can do that?
MS MACDONNELL: Your Honour, in rule 9.04…..for the person’s address for service. And 9.05 clarifies that it is the one stated on the originating process, as your Honour said.
HIS HONOUR: Yes. My untutored view was that service there would suffice, that the applicant bears the onus of altering the address they give for service of process on them.
MS MACDONNELL: Yes, that is correct, your Honour.
HIS HONOUR: But, again, lest something have gone wrong in the past, it would, I think, be prudent to make that additional direction that you serve a copy of the order.
So, again, subject to anything that counsel may say as to form, in matters No 7, M91/2004, No 17, M150,/2004, No 18, M155/2004, No 19, M158/2004, No 21, M162/2004, and No 28, M206/2004, there will be orders:
1. Any further affidavit in support of the application or in opposition to the Minister’s application be filed and served on or before 4.30 pm on Friday, 8 April 2005;
2. The further hearing of the application and of the Minister’s application is adjourned until 13 April 2005 at 9.30 am in Melbourne or such other time as may be notified in writing;
3. I will reserve costs.
In matter No 3, which is M73/2004, No 16, which is M149/2004, and No 22, which is M164/2004, there will be orders of the kind just announced, together with an additional order that the Minister forthwith serve on the applicant, in one of the ways prescribed by rule 9.04 of the Rules, a copy of today’s order.
Does that sufficiently meet the cases in those matters?
MS MACDONNELL: Yes, your Honour.
HIS HONOUR: Very well. There will be orders in those terms.
AT 10.43 AM THE MATTERS WERE ADJOURNED
UNTIL WEDNESDAY, 13 APRIL 2005
At 10.43 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M123/2004.
MS J.K. MACDONNELL: If the Court pleases, I appear for the respondent. (instructed by Clayton Utz)
Your Honour, in this matter my instructing solicitor swore an affidavit – it has, I believe, been filed at the Court on 15 March – regarding a form having been sent to the applicant to consent to remission to the Federal Court. However, no response was received, and, in light of the time between now and the adjourned matters, the respondent would ask your Honour to adjourn that matter over, as the respondent would then serve a summons seeking to have that matter also summarily dismissed on the same grounds as the other matters.
HIS HONOUR: Yes. If I simply adjourn matter M123/2004 until 9.30 on 13 April?
MS MACDONNELL: Yes, your Honour.
HIS HONOUR: In matter M123/2004, matter No 11 in the list, I have you down as being interested in this one. Are you, Mr Karapanagiotidis?
MR K. KARAPANAGIOTIDIS: Yes, your Honour. I would not mind actually standing it down for a few minutes, while I can speak to the applicant to find out why he did not respond to that notice. (instructed by the applicant)
HIS HONOUR: He is in Court?
MR KARAPANAGIOTIDIS: He is in Court somewhere here.
HIS HONOUR: Then I will stand it down, Ms Macdonnell.
MR KARAPANAGIOTIDIS: Thank you, your Honour.
HIS HONOUR: If it is a case of consent remitter let us remit it, but if the applicant is in Court let us deal with it in some form or other. I will make no order in M123 for the moment.
AT 10.45 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY
At 10.45 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M202/2004.
MS B. RAYMENT: If the Court pleases, I appear for the respondent. (instructed by Sparke Helmore)
HIS HONOUR: Yes, Ms Rayment.
MS RAYMENT: This is a matter where the respondent was going to proceed today on affidavit evidence, but I have heard what your Honour has said this morning about requiring a summons, so it would be appropriate for that matter to be adjourned to 13 April, also. I do not anticipate that there will be an appearance this morning.
HIS HONOUR: Certainly, we seem not to have anybody in M202. We have no one who has signed in and you are not aware of there having been any representation of the applicant here this morning?
MS RAYMENT: That is correct.
HIS HONOUR: In matter No 27, which is M202/2004, if I make orders in the form earlier announced, namely, an order for further affidavits on or before Friday, 8 April adjourning the matter to 13 April. Should I not in this matter also order the Minister forthwith to serve a copy of the order, Ms Rayment?
MS RAYMENT: Yes, your Honour.
HIS HONOUR: Again in the form earlier announced, namely, that the Minister forthwith serve on the applicant in one of the ways prescribed by rule 9.04 of the Rules a copy of today’s order. If I reserve the costs?
MS RAYMENT: That would be suitable. Thank you, your Honour.
HIS HONOUR: Yes. I make those orders in matter 27, M202/2004.
MS RAYMENT: Thank you, your Honour.
AT 10.47 AM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 13 APRIL 2005
At 10.47 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M123/2004.
MR KARAPANAGIOTIDIS: Your Honour, I have spoken to the applicant in M123. I have asked him regarding – this is the matter about the offer to remit the matter to the Federal Court.
HIS HONOUR: Yes.
MR KARAPANAGIOTIDIS: I have spoken to him and he instructs me that he received no such letter.
HIS HONOUR: I will give you some time to sort it out with the Minister’s representatives.
MR KARAPANAGIOTIDIS: One could simply just remit it, given that there was the offer for that.
HIS HONOUR: If it can be remitted, then I will remit it. What is the position, Ms Macdonnell? You have offered to have it remitted. Is there any reason not to remit it on the usual terms?
MS MACDONNELL: Since that offer was made and there was no response, your Honour dealt with the matter of M31, and, having regard to the facts of the particular matter, the respondent would seek to have it dealt with on the same basis as your Honour did in M31.
HIS HONOUR: You still do not have a summons on?
MS MACDONNELL: No, your Honour.
HIS HONOUR: One of the difficulties with high volume litigation like this is managing it. I understand that. There is a real and practical problem about managing high volume litigation of this kind. All I would say is that it is important, as far as possible, to recognise, most especially with litigants in person, that we bring them to Court on as few occasions as we have to. I do not want to go into the rights and wrongs of how this has come about. That is going to be unproductive.
I know that there are some practical problems out there. It is a real world out there in which these things do not all just fit neatly into a nice judicial slot, but, please, would the representatives of the Minister just bear in mind that if we can cut down the number of times we have to bring people to Court, we have to mention things in Court, it is better for all concerned.
Having got that off my chest, can we perhaps simply adjourn it over. The Minister wants to apply to terminate the application summarily. It is better it is dealt with here than going down into the Federal Court and then bouncing back up here on appeal.
MR KARAPANAGIOTIDIS: Excuse me, your Honour, it is only just because they had made that offer, we…..The applicant just states…..that he does not have any recollection of such correspondence.
HIS HONOUR: I know. If I adjourn it over until 13 April I would give no other directions. There is no other summons. I would simply adjourn the matter over for 13 April. Ms Macdonnell, can I say this, this Minister’s representatives will get the very dustiest of responses if they short serve the process that they want to issue next time around.
MS MACDONNELL: That is clearly understood, your Honour.
HIS HONOUR: It is called fair warning, is it not, Ms Macdonnell?
MS MACDONNELL: Indeed, your Honour.
At 10.52 AM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 13 APRIL 2005
HIS HONOUR: What else have we, then?
MS MACDONNELL: Perhaps I should mention the further ones that I have, your Honour.
HIS HONOUR: We have a lot of people sitting up the back who are waiting. I am anxious to let them go about whatever they can lawfully go about.
MS MACDONNELL: Could your Honour confirm that there are a number of matters which are noted as to be discontinued, that they have in fact been dealt with on that basis, and they are the matters in the list of 10, 15, 32 and 29?
At 10.52 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant M121/2004.
At 10.52 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte M148/2004.
At 10.52 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M221/2004.
At 10.52 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M207/2004.
MS J.K. MACDONNELL: If the Court pleases, I appear for the respondent. (instructed by Clayton Utz)
HIS HONOUR: In No 10 there is a notice of discontinuance filed and I know of no reason why that should not be acted upon. In No 15 consent orders have been made. That is disposed of. I am sorry, the next one was?
MS MACDONNELL: No 32.
HIS HONOUR: Again, a notice of discontinuance was filed on the 15th. That can be acted upon.
MS MACDONNELL: And 29, your Honour. The respondent is uncertain as to what the position is and has an understanding that something may have been received by the Court.
HIS HONOUR: No 29, as far as we know, is still alive and well. I think that is M207. In M207 there is a letter which, on its face, appears to be from the applicant, which I read:
I refer to your letter and wish to advise I have been discussing my situation with compliance section. As discussed with them I write to advise I do not wish to proceed with the application and shall thank you have same withdrawn or ceased.
Are you conscious of any appearance on behalf of the applicant in M207? We are not.
MS MACDONNELL: No – not conscious of, your Honour.
HIS HONOUR: In M207/2004, which is No 29 in the list, the application is dismissed for want of appearance by the applicant. The applicant to pay the respondent’s costs.
MS MACDONNELL: Thank you, your Honour.
AT 10.54 AM THE MATTERS WERE CONCLUDED
At 10.56 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M214/2004.
MR C.J. HORAN: If the Court pleases, I appear for the respondent. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, Mr Horan.
MR HORAN: I believe this is also a matter in respect of which a notice of discontinuance has been filed.
HIS HONOUR: Yes. Notice of discontinuance was filed on 11 March. That can be acted on, according to its terms.
AT 10.57 AM THE MATTER WAS CONCLUDED
At 10.57 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M84/2004.
At 10.57 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant M85/2004.
At 10.57 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicants M106/2004.
At 10.57 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M118/2004.
At 10.57 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant M185/2004.
At 10.57 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant M189/2004.
MR C.J. HORAN: If the Court pleases, I appear for the respondents. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, Mr Horan.
MR HORAN: There are, I think, seven matters in respect of which the Minister submits remittal is the appropriate course for the Court to take.
HIS HONOUR: Right. And which are those matters?
MR HORAN: They are No 4, M84/2004, No 5, M85/2004, No 8, M106/2004, No 9, M118/2004, No 13, M136/2004, No 24, M185/2004 and No 25, M189/2004. In each of those matters, letters have been sent to the applicants or their representatives proposing consent orders for remittal and in some cases, though no response has been received to those orders, in some, but not all, the applicant seeks remittal in the draft order nisi which is filed with the affidavit.
I am sorry, I think I mentioned No 13, M136/2004, and that, I believe, has been discontinued by consent. That was the one that was mentioned earlier this morning, your Honour. I apologise for that.
HIS HONOUR: Yes, M136 is gone. We do have the applicant here in M189, I think, do we not? I think I have that applicant as one of yours, Mr Karapanagiotidis.
MR K. KARAPANAGIOTIDIS: Yes, your Honour, for the applicant. (instructed by the applicant)
HIS HONOUR: What the Minister is asking is that this case should be remitted to the Federal Court, we should not decide it here. Is there any reason not to do that?
MR KARAPANAGIOTIDIS: No, we agree with those directions.
HIS HONOUR: Yes. I am not conscious of there being any other appearance by an applicant in the matters you have just mentioned, is that right, Mr Horan?
MR HORAN: I am not aware of any.
MR KARAPANAGIOTIDIS: We do not have anyone else, your Honour.
HIS HONOUR: Yes. But, then, in the following matters, matter No 4, M84/2004, No 5, M85/2004, No 8, M106/2004, No 9, M118/2004, No 24, M185/2004 and No 25, M189/2004, I make orders remitting the matters to the Federal Court and give directions of the usual kind in respect of remitter.
Mr Horan, in the past I have directed that the Minister provide the requisite copies of the file for transmission. I would be minded to do that again. Is there any reason not to?
MR HORAN: No, your Honour. When your Honour says the usual directions, if I could hand up a minute which reflects the terms of order which were sent to each applicant and I understand would reflect the ordinary form of orders that are made by this Court?
HIS HONOUR: Yes. You want direct remitter to the Federal Magistrates Court, do you?
MR HORAN: Yes, your Honour. If the Court pleases.
HIS HONOUR: Have we now power to do that?
MR HORAN: I have been working on the basis that there is, but ‑ ‑ ‑
HIS HONOUR: I know that there is legislation, which either is in the Houses or is about to go through, which provides for direct remitter to the Federal Magistrates Court, but I thought – I may be subject to correction, of course – but I thought not yet in.
MR HORAN: I think there are amendments proposed to make the Federal Magistrates Court the starting point for all migration applications, but it currently does have jurisdiction in all migration applications ‑ ‑ ‑
HIS HONOUR: Yes, but on remitter from the Federal Court.
MR HORAN: Or on initiation of the proceedings in the Magistrates Court. They can be initiated in either the Federal Magistrates Court or the Federal Court and transferred between those courts.
HIS HONOUR: It comes down, does it not, to what section 44 of the Judiciary Act authorises me to do.
to any federal court . . . that has jurisdiction with respect to the subject‑matter and the parties –
MR HORAN: Yes.
HIS HONOUR: So do you say the Federal Magistrates Court is of that kind?
MR HORAN: Yes, your Honour.
HIS HONOUR: Very well. The orders will be that the further proceedings in the application be remitted to the Federal Magistrates Court of Australia, Victoria District Registry, the application for an order nisi proceed in that court as if steps already taken in the matter in this Court had been taken in that court.
This provides, Mr Horan, that the Deputy Registrar forward photocopies of all documents. In the past we have provided that the Minister should provide the requisite number of copies of documents filed in this Court for the Deputy Registrar to forward those copies to the proper officer of the Federal Magistrates Court.
The costs, including the costs of the application to date, are to be according to the scale applicable to the proceedings in this Court and, thereafter, according to the scale applicable to the Federal Magistrates Court and in the discretion of that court.
You then provide that further proceedings be governed by Rules of this Court.
MR HORAN: Yes.
HIS HONOUR: Why?
MR HORAN: There is an issue that has arisen as to whether or not the time limits in this Court would govern proceedings on remittal. This direction clarifies that. There is an issue as to whether or not the directions should be that the time limits in the old Rules, which were applicable at the time the applications were filed, should apply or whether it should refer to the equivalent provisions in the new Rules.
HIS HONOUR: But why should I make an order that, on one view, is unnecessary or, on the opposite view, would cut down the rights? It is heads you win, tails you do not lose, this form of order, Mr Horan. I can understand why you propound it, but why should I make an order of that kind?
MR HORAN: What it does is it preserves the position that would apply if the matter were to proceed in this Court and it preserves the rights that the Minister may have in respect of delay in raising those points on remittal.
HIS HONOUR: Either that point is available to you on remitter or it is not.
MR HORAN: The difficulty is that the question has arisen whether or not the time limits are procedural or substantive. Insofar as they were regarded as procedural, they will not apply on remittal, in the absence of any direction by the Court for the time limits to apply. The fact that the time limits may be procedural does not provide a reason why they should not be preserved on remittal if those limits would be applicable to the proceeding in this Court.
I should say that in some of these applications that I have mentioned the application was indeed filed within the High Court time limits and in those cases this direction would effectively provide no obstacle to the applicant on remittal.
HIS HONOUR: The proceeding is commenced not on remitter. The proceeding is commenced by the filing of the process in this Court and, under the old Rules, the filing of the affidavit, and that time occurred or did not occur within the time prescribed.
MR HORAN: The difficulty is that if the application were filed outside the prescribed time in this Court and this direction were not made, then the application, once remitted, would not be subject to any limitation as to time.
HIS HONOUR: Why not?
MR HORAN: On the basis that the Full Court of the Federal Court has held that the Federal Magistrates Court Rules govern the conduct of the proceedings on remittal.
HIS HONOUR: Yes, no doubt they do from the moment of remittal.
MR HORAN: And that the matter that is remitted is remitted without qualification by what is regarded as the procedural time limit applicable under the Rules in this Court. The position taken by the Minister has been that the time limits should apply, even in the absence of a direction, but this direction makes that explicit.
I should say, your Honour, the alternative would be to run the extension of time application in this Court as a threshold matter before the matter is remitted and a direction of this nature avoids the need to engage in that process in each of these proceedings before this Court without prejudice to the Minister’s ability to raise the issues of time on remittal.
HIS HONOUR: What power do I have to give any direction on remitter about the application of the Rules of Court to the proceeding as remitted?
MR HORAN: I think it is under section 44 of the Judiciary Act which provides, relevantly, in section 44(1) that:
further proceedings in the matter or in that part of the matter, as the case may be, shall be as directed by the court to which it is remitted.
But then, earlier in that section, it is:
subject to any directions of the High Court –
In the annotations in the loose leaf to this section there is reference to a case of Pozniak v Smith (1982) 151 CLR 38, which is cited for the proposition that the power to give directions is confined to matters of procedure. So that, in effect, this direction would only be relevant to the extent that the time limits are procedural in nature and not substantive.
There is one alternative to such a direction, your Honour, and that is to make clear that the application that has been remitted is not simply the application for the order nisi but the application for an extension of time, together with the application for the order nisi, and it may be that that is a simpler way of addressing the matter.
HIS HONOUR: I will recall the orders that I previously indicated in these matters. What I would be minded to do, in matters No 4, M84/2004, No 5, M85/2004, No 8, M106/2004, No 9, M118/2004, No 24, M185/2004 and No 25, M189/2004, is to order as follows:
1. Further proceedings in the application and any application for extension of time within which to seek any relief sought in the proceeding be remitted to the Federal Magistrates Court of Australia, Victoria District Registry;
2. Further proceedings in those applications to proceed in that court as if steps already taken in this Court had been taken in the Federal Magistrates Court;
3. The Minister forthwith to provide to the Deputy Registrar of this Court copies of all documents filed in this Court for the Deputy Registrar to forward to the proper officer of Federal Magistrates Court;
4. Costs to date to be according to the scale applicable to proceedings in this Court and thereafter to be in the discretion of the Federal Magistrates Court.
If I make orders in those terms, will that meet the case?
MR HORAN: Yes, your Honour.
HIS HONOUR: Yes, thank you, Mr Horan. Does that complete your matters, Mr Horan?
MR HORAN: It does, your Honour. If the Court pleases.
HIS HONOUR: Thank you.
AT 11.15 AM THE MATTERS WERE CONCLUDED
HIS HONOUR: What other matters have we remaining in the list? We still have a lot of people sitting up the back.
At 11.15 am Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant M90/2004.
MS J.K. MACDONNELL: Your Honour, I appear for the respondent. (instructed by Clayton Utz)
Your Honour, this is a matter – No 6 in the list – in which the respondents are also seeking remission to the Federal Magistrates Court.
HIS HONOUR: Yes.
MS MACDONNELL: Your Honour, I do have an affidavit regarding the respondent having been asked to consent to those orders and I tender that.
HIS HONOUR: Yes. Again, we have no appearance on behalf of the applicant. I file the affidavit of Amy Chakik, affirmed 15 March. Yes?
MS MACDONNELL: If your Honour was minded to make the same orders?
HIS HONOUR: If I make orders for remitter in the same form as those previously announced?
MS MACDONNELL: Yes, your Honour.
HIS HONOUR: Very well. There will be orders in those terms.
AT 11.16 AM THE MATTER WAS CONCLUDED
At 11.16 am Re Minister for Immigration and Multicultural and indigenous Affairs & Ors; Ex parte Applicant M121/2004.
MS J.K. MACDONNELL: Your Honour, I appear for the respondent. (instructed by Clayton Utz)
The only other matter I had mentioned to your Honour on discontinuance, No 10 in the list, the respondent would be seeking an order as to costs.
HIS HONOUR: Yes.
MS MACDONNELL: Some of them were by consent and that was dealt with, but matter 10 in the list ‑ ‑ ‑
HIS HONOUR: But costs, I think, we discovered, did we not, follow automatically from discontinuance under the Rules?
MS MACDONNELL: Yes, your Honour, that appears to be the case, 27.10.6.
HIS HONOUR: Rule 27.10.6:
a plaintiff discontinuing a proceeding or withdrawing a claim shall pay the costs of each party to whom the discontinuance or withdrawal relates at the time of –
It seems to me that they follow. Yes.
MS MACDONNELL: Yes, your Honour. So those are all of the matters. Thank you, your Honour.
AT 11.17 AM THE MATTER WAS CONCLUDED
At 11.21 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant M79/2004.
At 11.21 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant M86/2004.
HIS HONOUR: That, I think, leaves only your matters, does it not, Mr Heerey?
MR E.J.C. HEEREY: Yes, your Honour. I appear for the respondent. (instructed by Blake Dawson Waldron)
I am still waiting for my instructor to return with those affidavits, but there is a matter – although I do not have formal instructions in this regard obviously – it has come to my attention, your Honour, that insofar as we rely upon service via post and that post was sent on Tuesday, 8 March, by operation of section 29 of the Acts Interpretation Act, the time of that posting is deemed generally to be at the time of delivery, and then by operation of section 160 of the Evidence Act there is a presumption, unless there is evidence to the contrary, that where an article is sent by prepaid post the delivery would be on the “fourth working day after having been posted”. Your Honour, that means that ‑ ‑ ‑
HIS HONOUR: Those who drafted the Evidence Act have a rather gloomy view about the postal service of their country. I do not say they are right or wrong.
MR HEEREY: Yes. It would apply whether it is from one suburb to the next or from here to Christmas Island, your Honour. In any event, there is a problem with service then, it seems, on those three matters that I have. I have not stopped my instructor from preparing those affidavits of service, because I thought that he should spend his time getting that done anyway. It has to be done.
HIS HONOUR: Yes.
MR HEEREY: I do not have instructions as to how I propose to deal with the three matters, but there is one matter that I would draw ‑ ‑ ‑
HIS HONOUR: I fear it is in my court, not yours, is it not, Mr Heerey, about what I do if they are short-served?
MR HEEREY: Yes. Two of them are unrepresented – well, they are represented at late notice by Mr Karapanagiotidis. In one of the matters though, and that is matter 36, your Honour, the applicant has been represented throughout the time of this High Court application by a solicitor, Mr Weerakoon. Mr Weerakoon is present today. It is in that matter that I would seek an abridgement of time for service on the basis that it is a very clear case of a matter which was issued out of time, having – in circumstances where there was a previous case litigating, in my submission, the same cause of action in the Federal Magistrates Court and I point ‑ ‑ ‑
HIS HONOUR: Let me leave – forgive me, Mr Weerakoon. Can I just leave your matter aside a moment? Can we just keep for a moment on the other three matters, Mr Heerey?
MR HEEREY: Yes, your Honour.
HIS HONOUR: Because ‑ ‑ ‑
MR HEEREY: Well, there are only two others.
HIS HONOUR: Two others, are there?
MR HEEREY: Yes, your Honour.
HIS HONOUR: Which are they?
MR HEEREY: I apologise. Nos 34 and 35 in the list, M79/2004 and M86/2004.
HIS HONOUR: So Nos 34 and 35. It would seem, through that statutory path you chartered, that there is a problem about service time, is that right?
MR HEEREY: Yes, your Honour.
HIS HONOUR: Now, is there any appearance in M79 and M86?
MR K. KARAPANAGIOTIDIS: If it please the Court, I appear for the applicant in matters M79/2004 and M86/2004. (instructed by the applicants)
HIS HONOUR: You have got both?
MR KARAPANAGIOTIDIS: I have got both, and I have taken instructions from both. Neither wishes for the matter to proceed today, and both would seek for it to be adjourned to 13 April, as you have directed with the other matters.
HIS HONOUR: Then, given that there is representation here, if I simply make orders for further affidavits by 8 April and adjourn the matter to 13 April reserving costs, Mr Heerey, do you wish to be heard against that?
MR HEEREY: No, your Honour.
HIS HONOUR: Well, again, if you would be good enough to explain to them ‑ ‑ ‑
MR KARAPANAGIOTIDIS: I will, your Honour.
HIS HONOUR: ‑ ‑ ‑ as with all of these matters, that 13 April will become the day when they have to defend whether they have an application. It is important.
MR KARAPANAGIOTIDIS: Thank you.
AT 11.22 AM THE MATTERS WERE ADJOURNED
UNTIL WEDNESDAY, 13 APRIL 2005
At 11.22 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant M94/2004.
HIS HONOUR: Now, that brings us back then, Mr Heerey and Mr Weerakoon, does it not, to matter M94/2004, No 36 in the list?
MR J.C. WEERAKOON: Yes, your Honour. I appear for the applicant. (instructed by the applicant)
MR E.J.C. HEEREY: Your Honour, I appear for the respondent. (instructed by Blake Dawson Waldron)
HIS HONOUR: You, Mr Heerey, look to abridge times for service and go on with the application, is that right?
MR HEEREY: Yes, your Honour.
HIS HONOUR: Mr Weerakoon, what is your attitude?
MR WEERAKOON: Your Honour, I would wish to bring to your attention the fact that ‑ ‑ ‑
HIS HONOUR: I am sorry, Mr Weerakoon. I am having a little difficulty hearing you. Do you mind speaking up a little louder?
MR WEERAKOON: I wish to bring to your attention, your Honour, the fact that this was not served in time. We received it on the 10th, and my applicant did not have sufficient time to seek instructions.
HIS HONOUR: Yes. So what do you say I should do with it?
MR WEERAKOON: If you would be kind enough, this being not a writ of cause but it is a writ that goes as of right when the applicant is directly affected by the course pursued by the Tribunal, to which this writ lies. So I would seek your Honour’s indulgence to have this matter adjourned, so I might have an opportunity to get instructions.
HIS HONOUR: Yes. Mr Heerey, the applicant wishes to have time. Why should I go on, even if it is, as you say, a staringly clear case?
MR HEEREY: Well, the lack of any merit in the case goes to what possible prejudice the applicant will suffer if we proceed today. This was an application where Mr Weerakoon himself prepared the applicant’s affidavit, which gives no explanation for the delay. On that basis alone, it must be seen as an open and shut case, your Honour. So I just put it on the basis that if there is a matter of short service, then it cannot be to the prejudice of the applicant, ultimately.
HIS HONOUR: I suppose the difficulty that is put against you would have to be, then, that we cannot know whether it is open and shut until I have a proper opportunity to put on material in answer and mount an argument in answer. That is the sort of debate that we would embark upon, is it not, Mr Heerey?
MR HEEREY: Yes, I concede that, your Honour.
HIS HONOUR: Yes. I think you are in some difficulty, Mr Heerey.
MR HEEREY: I appreciate that, your Honour. I was just hoping to take another one off the list.
HIS HONOUR: Salvage something out of the day.
MR HEEREY: Well, we did have our two discontinuances.
HIS HONOUR: Yes. Well, I think in matter No 36, M94/2004, there should be orders adjourning the matter to 13 April at 9.30. There should be a direction for further affidavits in support of the applicant or in opposition to the Minister’s application by 4.30 on Friday, 8 April. I should reserve costs.
Mr Weerakoon, again, although it may be unnecessary, I should emphasise that the hearing on 13 April is one of some importance.
MR WEERAKOON: Yes, your Honour. Thank you.
AT 11.26 AM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 13 APRIL 2005
HIS HONOUR: Now, can counsel tell me whether they have kept score and whether I have in fact dealt with everything I should have dealt with? Put it this way. I think I have, but I do not want counsel later to be in a position later of coming back saying, “By the way, there was one we didn’t dispose of”.
MR HORAN: Your Honour, there is nothing further from my matters.
MS MACDONNELL: Nothing further, your Honour.
MR HEEREY: Not from me, your Honour.
HIS HONOUR: Very well. I will adjourn.
AT 11.26 AM THE MATTERS WERE CONCLUDED
Key Legal Topics
Areas of Law
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Civil Procedure
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Insolvency
Legal Concepts
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Appeal
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Costs
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Jurisdiction
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Stay of Proceedings
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