Demydova v MIMA

[2006] HCATrans 571

[2006] HCATrans 571

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M96 of 2006

B e t w e e n -

MARYNA DEMYDOVA

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Defendant

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 19 OCTOBER 2006, AT 10.11 AM

(Continued from 24/8/06)

Copyright in the High Court of Australia

MR A. BONNICI:   May it please your Honour, I appear on behalf of the plaintiff.  (instructed by Belleli King & Associates)

MR C.J. HORAN:   If it please the Court, I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   The parties may well be aware of the matter of Bodruddaza v The Minister, which is proceeding S241 of 2006.  In that matter, Justice Heydon on 21 September 2006 referred the special case agreed by the parties pursuant to rule 27.08.1 of the Rules to a Full Court.  My understanding, subject to correction by the parties, is that the special case agreed by the parties in the matter of Bodruddaza puts in issue the validity of section 486A of the Migration Act 1958 (Cth).

That being so, it seems to me that the first question the parties in this matter need now to address is why should I not simply adjourn this proceeding off until the Bodruddaza litigation is resolved and if the question of validity is resolved there see what, if any, consequence that has for the fate of this litigation.  Mr Bonnici, what do you say?

MR BONNICI:   Your Honour, we have been approached by the defendant to in fact follow that course.  We have resisted following that course only for the reason that we want to make sure, with respect, that this matter, if it is going to go to the Full Court, it is a cab in line.  We do not know what is going to happen between now and the time that that case comes up for hearing.

HIS HONOUR:   Does your client presently have a bridging visa or some other arrangement permitting her to remain in Australia?

MR BONNICI:   My client has a bridging visa class C.  It does not allow her to do any work and in fact the Department has refused - the application was made and it was refused, and this causes a lot of difficulties.  We would like to see the case come on as quickly as possible, if only for that reason.

HIS HONOUR:   As I understand it from the affidavit of Ms Ngo, there has been an exchange of correspondence between the parties about the possibility of stating a case, but no agreement has yet been reached between the parties about stating a case in this matter for consideration by a Full Court.  My recollection, Mr Bonnici – I have just sent to check – is that Bodruddaza is presently fixed before the Full Court.  I will find out when.

MR BONNICI:   I think it is 14 or 15 December, your Honour.

HIS HONOUR:   It is in in the December sitting?

MR BONNICI:   Yes.

HIS HONOUR:   Well, it is not apparent to me what gain you would make at the moment in pushing this case on except the incurrence of particular expense by Ms Demydova which of course itself is something to be guarded against.

MR BONNICI:   I would not like to see that happen, your Honour.

HIS HONOUR:   No.

MR BONNICI:   With respect, the only reason why I wanted it to get on is to avoid expense.

HIS HONOUR:   Yes.  Yes, Bodruddaza is in for Thursday, 14 December.  Well, Mr Horan, what do you say I should do?

MR HORAN:   Your Honour, my client agrees that the matter should be adjourned, so I would not want to be heard in opposition to that proposed course of action.  In my submission the matter is a long way from being ready for referral to a Full Court, whether by way of a case stated or a special case.

HIS HONOUR:   Is it clear that the question of 486A’s validity will be determined in Bodruddaza?

MR HORAN: It is directly raised by the application for an order nisi in that proceeding, but there are two questions, one concerning the application of section 486A, and the second concerning its validity. So there may be a theoretical possibility at least that in light of the answer to the first question, the question of validity may not arise.

HIS HONOUR:   What, that even if valid, the section is not engaged in the particular facts of Bodruddaza’s Case?

MR HORAN:   Yes.  I am not familiar enough – I have read the draft – the special case which has been agreed in those proceedings, but I am not familiar enough with the issues in that case to say exactly how they might fall out in argument.  But certainly the question of validity has been directly raised by the plaintiff and the special case directly presents or refers to the Full Court the question of its validity, subject to any question of construction that might need to be addressed prior to that point.

Of course in this case, as your Honour may have seen from the exchange of correspondence between the parties, on the last occasion

your Honour made it clear that it was for the plaintiff to decide whether or not any challenge was to be raised to validity of, in particular, section 486A in these proceedings, and it seemed to be apparent from the correspondence between the parties that the plaintiff had decided not to raise any such challenge until at least we received proposed questions which now do seek to raise that. But, in my submission, before that challenge can be considered in these proceedings, it would require some amendment by the plaintiff to the application in order to directly raise a challenge to the validity of section 486A.

HIS HONOUR:   Yes.  Well, Mr Bonnici, I am minded to stand the matter out of the list generally, and either party can have liberty to apply on not less than three days’ written notice to the opposite party and I would reserve the costs, but I think it is better that this matter await the determination of the Full Court in Bodruddaza despite the questions of difficulty.

MR BONNICI:   In actual fact, your Honour, with respect, what is being said is that the matter stay – freezes as it is now, until such time as there is a decision?

HIS HONOUR:   Yes.

MR BONNICI:   I understand that.  I just wanted to be clear on that issue, your Honour, and anything that might happen would happen after the decision?

HIS HONOUR:   Yes.

MR BONNICI:   I understand.

HIS HONOUR:   I will stand the matter out of the list generally.  Either party has liberty to apply on not less than three days’ notice in writing to the opposite party.  Costs are reserved.  Yes, I will adjourn.

AT 10.21 AM THE MATTER WAS ADJOURNED