Ejueyitsi v Maloney

[2008] HCATrans 361

[2008] HCATrans 361

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P48 of 2007

B e t w e e n -

VINCENT EJUEYITSI

Applicant

and

JOHN MALONEY

Respondent

Summons for reinstatement

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 23 OCTOBER 2008, AT 9.30 AM

Copyright in the High Court of Australia

MR V. EJUEYITSI, appeared in person.

MS P.A. ALOI:   May it please, your Honour, I appear for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

HIS HONOUR:   Thank you.  Now, Ms Monck, I believe you were previously representing the applicant?

MS S.J. MONCK:   Yes, your Honour, I am currently on the record and I wish to seek leave of the Court to be excused.

HIS HONOUR:   Yes, you have not actually got formally off the record at this stage.

MS MONCK:   No, your Honour.

HIS HONOUR:   Thank you for the courtesy of your attendance today and you have leave to withdraw.

MS MONCK:   Thank you, your Honour.

HIS HONOUR:   Will you take the steps necessary to get yourself off the record?

MS MONCK:   I will, your Honour, thank you.

HIS HONOUR:   All right.  Thank you.  Mr Ejeuyitsi, you are seeking to reinstate your special leave application which was deemed abandoned because of the failure to file and serve application books by a specified date.  I have read the papers in support of your application and I understand, Ms Aloi, that the application is not opposed?

MS ALOI:   It is not opposed nor supported, your Honour.

HIS HONOUR:   Yes, I would not expect you to support it.  Yes, all right.  Thank you.  Mr Ejueyitsi, I am prepared to reinstate your special leave application provided that you take steps to file and serve your application books by 4.00 pm on 20 November 2008.  Also, I think you have attempted to file a reply submission in the Court but that submission was not accepted initially because it went over the five‑page limit, is that right?

MR EJUEYITSI:   Yes, your Honour.

HIS HONOUR:   Then you lodged another submission which I think is five pages, but that has not actually been accepted for filing.  I have a copy of it here.  I suppose the question I have to ask you is, is there any prospect that you will be actually able to get legal representation to assist you in the formulation of that final written submission, or reformulation of it?

MR EJUEYITSI:   Well, I have already made an arrangement, your Honour, for the opportunity.

HIS HONOUR:   All I want to know is an answer to my question.  Is there any prospect that you will have legal representation?

MR EJUEYITSI:   Yes, I will have legal representation.  I have already made an arrangement with somebody in the east to assist me with this matter, proceed forward to oral argument.  Because my accent is very strong, that is why I was arranging with them, to assist me.....agreed in the eastern State if the matter goes beyond for oral argument.

HIS HONOUR:   Yes.  The Court will have to decide whether the matter is dealt with on the papers or with oral argument.  So what I propose to do is – I mean, you have this reply but it may be that it would be assisted by some legal advice so that if you want to reformulate that reply, I will extend the time for you to file and serve your reply to 30 October 2008.  So if you want to file and serve a reply, you will have to resubmit the one that you have tried to lodge, I think, on 23 September 2008 and serve that on the other side so that it is properly filed.  Alternatively, if you do not want to rely on that one, you can try and reformulate it with legal assistance and file that, but your deadline for that is 30 October 2008, all right?  So your final reply has to be in by 30 October 2008 okay?

MR EJUEYITSI:   Yes.

HIS HONOUR:   Take a seat for a moment and I will just give some reasons for the orders I propose to make.

Vincent Ejueyitsi filed an application in this Court on 4 December 2007 seeking special leave to appeal against a decision of the Western Australian Court of Appeal dismissing his application to review a decision of Justice of Appeal Wheeler.

Justice of Appeal Wheeler had dismissed an application for leave to appeal against a decision of Justice Hasluck who had refused an application by Mr Ejueyitsi for an extension of time and for leave to appeal against a decision of a stipendiary magistrate. The stipendiary magistrate had convicted Mr Ejueyitsi of an offence against section 234(1)(b) of the Migration Act 1958. The magistrate’s decision was made on 24 October 2001.

The late application to extend time to appeal against the magistrate’s decision is said to have arisen because Mr Ejueyitsi discovered that the conviction was a bar to his attempt to seek permanent residency in Canada.  The procedural history in the Supreme Court is convoluted and it is not necessary to outline it further here.

Following the lodgement of his application for special leave to appeal Mr Ejueyitsi filed a written case and draft notice of appeal on 21 December 2007.  A notice of appointment of solicitor was filed on 24 January 2008, however, the solicitor ceased to act and another solicitor was appointed on 10 June 2008.  On 10 July 2008 there was a direction by the Court that Mr Ejeuyitsi file and serve his submissions. 

The deemed abandonment date was extended by the Deputy Registrar to 8 September 2008 as was the due date for the filing and service of the application books.  The deemed abandonment date was further extended on 11 August 2008 to 15 September 2008.  The respondent’s summary of argument was filed on 19 August 2008.  The application books not having been filed on 15 September 2008, the application was deemed abandoned by operation of rule 41.13.1. 

On 19 September 2008 a notice of appointment of solicitor was filed.  A summons seeking reinstatement of the application was filed on 8 October 2008 supported by an affidavit sworn by Mr Ejueyitsi.  The affidavit was rather difficult to follow but seems to point to some misunderstanding or lack of appreciation on the part of Mr Ejueyitsi as to when the books should be filed.  In any event, the position now is that all that remains to be done is for the books to be filed and served and a reply in proper form to be filed and served.  A reply exceeding the page limit was submitted for filing but apparently not accepted and a subsequent reply was not accepted because it was out of time.  However, I will extend the time for accepting the reply for filing.  The summons to reinstate the application is not opposed. 

I propose in the circumstances to make orders in the following terms:

1.The application is reinstated.

2.The applicant file and serve a reply, if any, by 4.00 pm on Thursday, 30 October 2008.

3.The applicant file and serve the application books by 4.00 pm on Thursday, 20 November 2008.

I should add that Ms Monck, who was representing Mr Ejueyitsi, has ceased to act but has, as a matter of courtesy, appeared in Court this morning as she had not had time to file a summons required under the Rules and I gave her leave to withdraw.  Mr Ejueyitsi represented himself.

All right, Mr Ejeuyitsi, you have your time limits, you have your reinstatement, now you will have to comply with them.  Thank you, Ms Aloi.

AT 9.39 AM THE MATTER WAS CONCLUDED