Durairajasingham, Ex parte Re Min for Imm and Multicult Affs & Ors

[1999] HCATrans 376

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S98 of 1996

In the matter of -

An application for Writs of Prohibition, Certiorari and Mandamus and an Injunction against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

ROSLYN SMIDT sitting as the REFUGEE REVIEW TRIBUNAL

Second Respondent

SHUNMUGAM NGANASAMANTHAM in his capacity of principal member of the REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte -

KUMARAKULASINGHAM DURAIRAJASINGHAM

Prosecutor

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 3 NOVEMBER 1999, AT 10.00 AM

(Continued from 6/6/96)

Copyright in the High Court of Australia

_______________________

MS E.N.J. WARNER:   I appear for the respondents.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Mr Durairajasingham does not speak English?

MR K. DURAIRAJASINGHAM appeared in person:   A little bit.

HIS HONOUR:   You are an interpreter.

THE INTERPRETER:   I am.

HIS HONOUR:   Then, we may swear you to interpret the evidence.  You want to give an affirmation?

DR ARUMUGAM KANDIAH, affirmed as interpreter:

HIS HONOUR:   Now, this is a summons for directions.  Doctor, does the prosecutor know what is involved here?  That the Commonwealth or the Minister is seeking to lay down a timetable to get this case heard?

MR DURAIRAJASINGHAM:   (Through interpreter):   Yes.

HIS HONOUR:   Has he seen the summons that has been filed by the Minister seeking certain dates?

MR DURAIRAJASINGHAM:   (Through interpreter):  I do not know exactly.

MS WARNER:   It is this document, I think.  Your Honour, I have served the prosecutor with a copy of the summons and he has it today.

HIS HONOUR:   Yes, I accepted that.  I was more concerned to know whether he understood it.  Ms Warner, this is mainly directed to you but it might also be interpreted to the prosecutor.  I will speak slowly.  There may be some procedural problems with this case.  Are you aware of - - -

MS WARNER:   Yes, your Honour.  I was informed yesterday by the Registrar that a difficulty had been identified, namely, that the order that was taken out on 25 November 1996 incorrectly - I think there was some typographical error - states the writs being sought when the matter was part remitted to the Federal Court.

HIS HONOUR:   Yes.  Well, I am not sure that it is a typographical error.

MS WARNER:   I have, in fact, yesterday - as a result of that telephone call, I did speak with the prosecutor's former solicitor and he was of that view.  No one took the matter up at all because the question of the nature of the relief being sought was not even arrived at.

HIS HONOUR:   I appreciate that that may be so, and the parties may not see it as a problem but there is a serious question, so it seems to me, as to whether we remitted anything. Our jurisdiction depends upon the nature of the writs sought. Constitution distinguishes between mandamus, prohibition, injunction, and what was sought against the Minister was a writ of prohibition. Certiorari was sought against the second respondent but, in fact, an issue of mandamus was remitted, so far as the Minister was concerned.

MS WARNER:   Yes, your Honour.

HIS HONOUR:   Query, whether that remitter had any effect at all because our only jurisdiction to remit depends on section 44 which, in turn, depends upon what was before us.  I have considerable doubts about it and it may be that at some stage I want to hear some argument on it.  (Through interpreter):  Would you tell the prosecutor that there seems to be at least some doubt as to whether the proper matter was ever sent down to the Federal Court for hearing in his case.  It is all very technical, you tell him; very, very technical.

Was there any further evidence taken before Justice Davies in this matter when it went before him?

MS WARNER:   No, your Honour.

HIS HONOUR:   It was just dealt with on the papers, was it?

MS WARNER:   That is right.  Your Honour, there was an additional affidavit which you might have noticed in the original summons for direction I sought to have - - -

HIS HONOUR:   Relied on.

MS WARNER:   - - - relied on and brought into evidence before this Court, but the issues that were intended to have been remitted were, in fact, remitted and were the subject of the judgment of Justice Davies.

HIS HONOUR:   I thought he decided only on what was remitted.

MS WARNER:   Yes.

HIS HONOUR:   He did, and not on what was in the original orders although he noted and apparently submissions were made in terms of the original orders.

MS WARNER:   Yes, that is correct.  He considered the ground that were remitted to him which were identified as being specific grounds in a draft order nisi of the prosecutor's former solicitor which appears as exhibit 10 to the initiating affidavit that commenced proceedings in this Court.

HIS HONOUR:   Yes, I know, I have it opened in front of me.

MS WARNER:   And the nature of the grounds that were the subject of Justice Davies' decision were exactly those grounds set out.

HIS HONOUR:   Yes.  It seems to me there may be some important questions and it may be that the matter may have to be heard, in effect, de novo, depending upon what view is taken about the remitter.  Without in any way seeking to put any pressure on legal aid authorities, I do think that this is a case where it would be proper for legal aid to be granted so that ‑ ‑ ‑

MS WARNER:   Yes.  I am wondering if your Honour has available the sort of order that is comparable to Order 80 in the Federal Court Rules to order that - I meant to check this, this morning - the Bar Association provide pro bono assistance to the prosecutor.

HIS HONOUR:   I do not know about order.  I had in mind that I might ask them to do it.  We have done it in the past on special leave applications but it is always an imposition on private practitioners, particularly - it may not be if no further evidence is required. 

MS WARNER:   I think that in this matter it would not be a question of evidence, your Honour.

HIS HONOUR:   No.  (Through interpreter):  Well, would you tell the prosecutor that I think there are some important legal questions to be argued in this case as to whether or not these proceedings were properly sent down to the Federal Court for determination and that it may be I will have to re‑hear the whole case myself.  I would like the applicant to apply for legal aid again.

Ms Warner, do you think you could assist in some way by having a copy of the transcript sent to the relevant legal aid - - -

MS WARNER:   Yes.  In fact, I have already had - the prosecutor has, in fact, applied for pro bono legal assistance to the New South Wales Bar Association.  In fact, I sent the prosecutor a list of possible sources of pro bono legal assistance and I have had some discussion with the person who administers that scheme for the Bar Association and I will certainly speak with her again and explain recent events to her and also indicate that the Court and the respondents would be very much assisted, I think, if that were granted.

HIS HONOUR:   Yes.  It seems to me that quite apart from what is left here, on one view, that there may well be an issue to be determined as to whether or not the remitter was valid and, in which case, rather than remit the matter again, it may be necessary for me to in fact - I think I would keep hold of this matter now - for me to determine the whole issue.

MS WARNER:   Yes.  Your Honour, might I then suggest - your Honour might be aware of the initial views of the respondents about what occurred but, in any event, this particular issue of whether the remitter were effective could be determined separately and perhaps quite relatively quickly, just as a separate matter, in perhaps a month's time, for example, and then a further timetable could follow from that, depending on what decision was made.

HIS HONOUR:   Yes.  How long do you think it might take before we get some sort of an answer from some legal aid - - -

MS WARNER:   Yes.  I think that could be done quite quickly.  I could certainly make inquiries today and then speak with your Honour's associate and give him some indication of when the application for that assistance would be determined and then get some idea of citing a timetable.  But I think that could be - I think that in light of what has occurred today, the Bar Association would probably be able to assist quite quickly.

HIS HONOUR:   Yes.  Well, rather than talk about summons for directions at this stage, it may be better to adjourn these proceedings for, say, two weeks.  I will be back in Sydney on the Monday.  Yes.  What if I adjourn these proceedings to 15 November?

MS WARNER:   It is suitable, your Honour.

HIS HONOUR:   At 10 o'clock on 15 November.  Hopefully, we will have counsel who will have a better idea as to the appropriate timetable in the particular case.

MS WARNER:   Right, and that is in order that a timetable might be set in order to determine this question - - -

HIS HONOUR:   To determine the whole lot, I think; determine everything, even if it is going to be done in two stages.  The case has been around too long and some action has to be taken on it one way or the other.  (Through interpreter):  Would you tell the prosecutor I am going to adjourn these proceedings until 10 o'clock on 15 November.  An endeavour will be made to get legal aid for him so that he will be legally represented before me and then we will seek to fix dates for taking evidence, filing affidavits, hearing and such matters.

Would you take steps to contact the Bar Association, please, Ms Warner.

MS WARNER:   Yes, your Honour.

HIS HONOUR:   I will just repeat again the issues that seem to me that are involved:  having regard to the terms of the initiating process and the terms of the consent order, whether the proceedings in front of Justice Davies were of any force or effect, and as to whether or not it would be convenient to have that issue dealt with separately from what, on one view, is the residue of the matter here or whether it would be more appropriate in all the circumstances to determine all issues in a single hearing.

MS WARNER:   Yes, your Honour.

HIS HONOUR:   At the moment, I propose to keep hold of this matter now until it is finally disposed of, at least at first instance in this Court.

MS WARNER:   As the Court pleases.

HIS HONOUR:   It is amazing that sometimes some simple errors, if you like, can give rise to some very important questions of law.  I will adjourn the proceedings until 10 o'clock on 15 November.  (Through interpreter):  I

am sorry, I should have asked the prosecutor, is that convenient to the prosecutor?

MR DURAIRAJASINGHAM:   Yes.

HIS HONOUR:   Yes, thank you.  Adjourn the proceedings.

AT 10.17 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 15 NOVEMBER 1999