Dacanay v Minister for Home Affairs & Anor

[2022] HCATrans 73

[2022] HCATrans 073

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P14 of 2021

B e t w e e n -

MICHAEL KENNETH DACANAY

Plaintiff

and

MINISTER FOR HOME AFFAIRS KAREN ANDREWS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON THURSDAY, 14 APRIL 2022, AT 9.31 AM

Copyright in the High Court of Australia

HIS HONOUR:   Pursuant to rule 28.01.1, I dismiss this application for constitutional or other writs for want of prosecution.  I publish my reasons and direct that those reasons be incorporated into the transcript.

This application for constitutional or other writs was filed in this Court on 5 May 2021.  In accordance with the High Court Rules 2004 (Cth) the application should have been served on the respondents on 12 May 2021, and an affidavit of service should have been filed, at the latest, on 19 May 2021.

On 21 June 2021, the Registry emailed the plaintiff to remind him to file an affidavit of service.  The Registry received no reply to this email.

On 1 September 2021, the Registry again emailed the plaintiff to remind him to file an affidavit of service.  The Registry received no reply.

On 21 September 2021, the Registry emailed the practitioner who had signed the certificate in the application pursuant to s 486I of the Migration Act 1958 (Cth) certifying that there are reasonable grounds for believing the litigation has a reasonable prospect of success asking the practitioner to confirm whether the matter was proceeding. The Registry received no reply.

On 9 March 2022, the Registry emailed the plaintiff in the following terms:

Dear Mr Dacanay,

You were required to serve the filed documents on the respondents within 7 days of filing.  You were further required to file an affidavit of service setting out the time and manner of service within 7 days of service.

To date, no affidavit of service has been filed with the Court.

If no affidavit of service is filed by 23 March 2022, this matter will be referred to the Court for consideration as to whether an order for summary dismissal under rule 28.01.1 should be made.

The Registry received no reply to this email.

In light of those circumstances, I consider that the plaintiff has not prosecuted this proceeding with due diligence, and it is appropriate that this proceeding be dismissed for want of prosecution pursuant to r 28.01.1 of the High Court Rules.

Please now adjourn the Court.

AT 9.32 AM THE MATTER WAS CONCLUDED