Ekanayake v MIMIA & Ors
[2005] HCATrans 768
[2005] HCATrans 768
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M66 of 2005
B e t w e e n -
SALIYA NALINDA MUDIYANSELAGE EKANAYAKE
Plaintiff
and
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Defendant
MS ANNABEL HAWKINS IN HER CAPACITY AS MEMBER OF THE MIGRATION REVIEW TRIBUNAL
Second Defendant
PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL
Third Defendant
Summons
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON THURSDAY, 22 SEPTEMBER 2005, AT 9.34 AM
Copyright in the High Court of Australia
__________________
MR P.F.J. CONDLIFFE: If it please, your Honour, I appear on behalf of the plaintiff. (instructed by Chandra Weerakoon)
MR E.J.C. HEEREY: If it please the Court, I appear for the first defendant. (instructed by Clayton Utz)
HIS HONOUR: Am I right in understanding, Mr Heerey, that it is your summons, the summons of 13 September 2005, which is the immediate process?
MR HEEREY: Yes, that is correct, your Honour.
HIS HONOUR: There is, in support of that, the affidavit of Fiona Stephanie Dea sworn 13 September 2005, which I take it you read.
MR HEEREY: That is correct, your Honour.
HIS HONOUR: Is there any objection to my receiving the affidavit or any part of it, Mr Condliffe?
MR CONDLIFFE: No objection, your Honour.
HIS HONOUR: That may be taken as read.
MR HEEREY: Your Honour, there is an affidavit of service.
HIS HONOUR: Given that Mr Condliffe appears, I think we have moved past that.
MR HEEREY: Yes, just for completeness.
HIS HONOUR: We come then to the substance of it, do we not, Mr Heerey?
MR HEEREY: Yes, we do, your Honour. In this matter there was a decision of the Migration Review Tribunal made on 6 May 2004. That is a relevant date because any application to this Court for mandamus was due within two months of that date and an application for certiorari was due within six months of that date. The application which is before your Honour was, in fact, made on 23 June 2005, which means it was 11 months out of time in respect of mandamus and seven months out of time with respect to certiorari.
On that basis, your Honour, guided by the comments that your Honour made in August last year in the case of Applicants M31/2004; Ex parte Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2004] HCATrans 318 - I have handed a copy of that decision to my friend this morning. Should I hand up a copy for your Honour’s reference as well?
HIS HONOUR: Yes, thank you.
MR HEEREY: It is convenient first to deal with the question of prohibition as sought. In that decision your Honour pointed out, with reliance on what Justice McHugh had said in Re Ruddock; Ex parte Reyes, that prohibition is an inappropriate remedy because it will not go to the Tribunal because so long as that Tribunal’s decision stands there is nothing to prohibit ‑ ‑ ‑
HIS HONOUR: Reyes is (2000) 177 ALR 484, yes?
MR HEEREY: That is correct. In that regard, there is nothing to prohibit the Tribunal to do if the decision stands. If the decision is quashed by way of certiorari, the appropriate remedy is mandamus to direct the Tribunal to hear the decision again according to law. Further, relying on that same judgment of his Honour Justice McHugh at 488, paragraph 23, there is the principle that prohibition will not go the Minister because the Minister’s conduct is prescribed by the Act by the consequences of the finding of the Tribunal one way or the other.
So on that basis there is no viable claim for prohibition in this case and that, in itself, is enough to justify that order that we seek under the summons. That then leaves the questions of certiorari and mandamus and the issue there is should the plaintiff be entitled to an enlargement of time under the Rules to bring that action for that relief and again I rely upon your Honour’s comments in the case of Applicants M31/2004 where your Honour said that the fact that the plaintiff had conducted other proceedings in the Federal Magistrates Court is far from providing a reason
for an extension of time. On the contrary it is a powerful reason against such an extension.
So, in my submission, your Honour, those matters in themselves should be enough to determine the matter but I am prepared to deal with the questions of res adjudicata and Anshun estoppel and abuse of process and all I say in that regard ‑ ‑ ‑
HIS HONOUR: It may be convenient, I think, if I hear what Mr Condliffe has to say on the arguments you have thus far presented. As I have indicated on earlier occasions, I think that the application of doctrines of preclusion in the context of public law remedies of the kind with which we are now dealing give rise to issues of a kind that are quite difficult and complex and if they are to be agitated I suspect that there is much to be said for the view they should go to a Full Court and the Full Court decide whether doctrines of preclusion have operation in this regard. I understand that they are arguments you would wish to make, but for the moment I would stop you and hear what Mr Condliffe has to say on the arguments thus far presented. Now, Mr Condliffe.
MR CONDLIFFE: Thank you, your Honour. In relation to those matters thus far raised can I just point out to your Honour, in terms of the chronology of the matter that the plaintiff was not represented before the MRT and there is some issue with his representation as you will see before the subsequent proceedings before the Federal Magistrates Court.
HIS HONOUR: Can I just make sure that I understand the chronology of events properly, Mr Condliffe, so please correct me if I am wrong. My understanding is that the plaintiff, a Sri Lankan national of Sinhalese ethnicity, had a student visa which was cancelled on 13 August 2003.
MR CONDLIFFE: That is right and my understanding is that the university notified DIMIA on 11 June 2003 that the ‑ ‑ ‑
HIS HONOUR: Yes, but cancellation which is the relevant decision is 13 August 2003. He then goes to the MRT making his application to that body on 19 August 2003. They fix hearings first on 4 March 2004, then on 6 April 2004, at neither of which he appears or is represented. Pausing there, have I the sequence of events right so far?
MR CONDLIFFE: Yes. The only thing I would add to that, your Honour, was that the plaintiff says that he notified the university in 2002. He subsequently re‑enrolled on 4 June 2003. At the stage he re‑enrolled the university subsequently then notified DIMIA, which went through the cancellation process, so at the time of cancellation he was relevantly enrolled in the course that he had previously been enrolled in.
HIS HONOUR: The underlying problem is one about payment of fees, is it not?
MR CONDLIFFE: Yes, there was some family problem at home with regard to his mother’s income. She had to sell some properties, as I believe. According to his affidavit before this Court, he was not actually notified of the earlier termination for the period until he subsequently re‑enrolled.
HIS HONOUR: Yes.
MR CONDLIFFE: It will be the argument of the plaintiff that for all intents and purposes he maintains his enrolment, but that is the sequence of events.
HIS HONOUR: With the steps in the process the Tribunal, he not appearing you say for a number of reasons, affirm the cancellation on 6 May 2004?
MR CONDLIFFE: That is correct, your Honour.
HIS HONOUR: He then goes to the Federal Magistrates Court applying in August 2004?
MR CONDLIFFE: On 11 August.
HIS HONOUR: And various interlocutory steps occur including what seems to be a quite elaborate set of steps in which the solicitor is acting, the solicitor is not acting, the solicitor is withdrawing, the solicitor is filing papers though he is purported to withdraw, et cetera, but it culminates in May 2005, does it not?
MR CONDLIFFE: On 12 May before Federal Magistrate McInnis.
HIS HONOUR: And he dismisses the application?
MR CONDLIFFE: Yes, and the plaintiff, with his solicitor appointed just before that hearing, applied for a discontinuance. There was also some discussion or mention in the hearing before the Federal Magistrate about an adjournment. That was opposed by the respondent and so the matter proceeded.
HIS HONOUR: As on a full hearing.
MR CONDLIFFE: The Magistrate not only affirmed the decision of the Tribunal, it also found there was no arguable case. At that stage, after that series of events, the application was then made to this Court.
HIS HONOUR: With this history, the argument made against you is that you are out of time for mandamus and certiorari, why should I extend the time and unless I extend time, particularly for certiorari, the other relief falls away because so long as the Tribunal’s decision stands the Act is engaged and operates according to its terms. That is the nub of the point you have to meet?
MR CONDLIFFE: Yes.
HIS HONOUR: How do you meet it?
MR CONDLIFFE: The key point the plaintiff would make to oppose these proceedings is essentially that the plaintiff has an arguable case. It has not been argued before either the Tribunal or the Federal Magistrate – I can go through those arguments. It would be the strong contention of the plaintiff that the Tribunal did not act according to law and therefore mandamus should apply.
HIS HONOUR: What is the essence of the ‑ ‑ ‑
MR CONDLIFFE: The essence is that there is a jurisdictional error and therefore that time should not run.
HIS HONOUR: What is the jurisdictional error to which you would want to point?
MR CONDLIFFE: The jurisdictional error involves a number of points, your Honour. There are at least three points. The first is that the plaintiff would argue that there is, in effect, not a breach of condition 8202 because at the time of the cancellation of the Department he was in fact enrolled in a course at the university and he would maintain because at the time he was subsequently re‑enrolled and not notified of his termination of enrolment that he has maintained his enrolment.
If you look at the university documents on the court book for the previous proceedings you will see that the student has notified the university of the cessation of studies and the university has noticed that and they at some stage after that have terminated his enrolment. He states that he was not notified of that termination until after he subsequently re‑enrolled. The question that the Tribunal should have therefore asked itself and which it did not was whether in fact the student had maintained his enrolment.
If you look at the cases in this area, your Honour, you will see that most of them are concerned with students who for some reason or other finished a course, their enrolment has been terminated and they may be going on to another course and they may have just disappeared then they are subsequently terminated – their visa is subsequently cancelled – but in this case he had actually re‑enrolled. The only case on point that I could find, your Honour, was a case that was close to the fact situation in this was a case of Liu v MIMIA [2003] FCA 1170, a case before Justice Cooper where he ‑ ‑ ‑
HIS HONOUR: Perhaps before you tell me about that case do you mind just coming back a moment to state the jurisdictional errors that you would wish to assign. You said number one was that there was in fact no breach of condition 8202 because he was enrolled. I think you told me there were three, were there not?
MR CONDLIFFE: Yes.
HIS HONOUR: What are the other two?
MR CONDLIFFE: The second is, your Honour, that the visa was cancelled pursuant to section 116(3) of the Migration Act. To cancel a visa under that provision requires a notice per section 119 of the Act. It is the plaintiff’s contention that the – there were in fact two notices given to the plaintiff which I will refer to in a moment but under section 119 that requires the Department to provide a notice. If you go to 119(1):
if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:
(a) give particulars of those grounds and of the information . . . because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i) those grounds do not exist; or
(ii) there is a reason why it should not be cancelled.
In outline, without going into the details of it at the moment, your Honour, it is the plaintiff’s contention that the notices provided under section 119, both notices are deficient, both are misleading and both prejudice the interests of the student. If the notice is pursuant to that section and not
specifically complied with it is the plaintiff’s contention that a further jurisdictional error is fallen into.
HIS HONOUR: Yes.
MR CONDLIFFE: If you refer to the actual decision of the Tribunal, it spends three or four paragraphs dealing with the requirements of notice and reiterates that the notice must be correct. I can go into the reasons why the notice is not correct, if your Honour would want to hear that?
HIS HONOUR: For the moment, as I say, I am anxious to understand what the jurisdictional errors are. The first is no breach of condition, the second is the visa being cancelled pursuant to 116(3) required a notice under 119 and insufficient or inappropriate notice was given. What is the third assigned error?
MR CONDLIFFE: The third error was that the Tribunal in its decision said that it had noted that there were two letters - the notices under section 119 were sent to the plaintiff and then it commented that those two letters contained the same conditions. In fact, if you look at – and I will refer you first to that comment, your Honour. That is in fact in error because the two notices actually contained different conditions. If I refer you to paragraph 13 of the Tribunal’s decision it says there ‑ ‑ ‑
HIS HONOUR: Which exhibit is that?
MR CONDLIFFE: That is DCA9 of the plaintiff’s ‑ ‑ ‑
HIS HONOUR: Yes, I have that. What paragraph?
MR CONDLIFFE: That is at page – it was 72 of the old court book but it is actually paragraph 13 of the MRT ‑ ‑ ‑
MR HEEREY: I apologise, your Honour, it does not appear that this affidavit has been served on the defendant.
HIS HONOUR: This is the affidavit in support of the application. Have you not got the affidavit in support of the application? That would surprise me. It is an exhibit to it. It is the affidavit of the applicant affirmed 22 June 2005, exhibit DCA9. Is there a ‑ ‑ ‑
MR HEEREY: No, we do not have that. It does not seem that we have received that.
HIS HONOUR: What, no affidavit in support of the ‑ ‑ ‑
MR HEEREY: No, just the application for an order to show cause dated 23 June 2005.
HIS HONOUR: No doubt the plaintiff is under an obligation to serve the affidavit, but I would have thought it is not beyond the wit of those representing the Minister to recognise that ordinarily there would be an affidavit and to ask where it is. Well, perhaps if a copy could be made available, Mr Condliffe.
MR HEEREY: I do have a copy of the Tribunal’s decision that Mr Condliffe is referring to.
HIS HONOUR: Yes, right. Let us sort this out before we go further. What do you want to do, Mr Heerey? You have not had the affidavit, you say. What follows from that fact? Do we go on, not go on? What do we do?
MR HEEREY: I do have a copy of the Tribunal’s decision. So long as that is what is being referred to I cannot object but I do not have, contained at least in this brief or with my instructor, the relevant notices that Mr Condliffe is referring to now for the purposes of section 119. I do not know if they are exhibited to the affidavit that he refers to. It depends if he wants – if they will be germane to what Mr Condliffe wishes to put today. Perhaps the most practical approach, your Honour, is at least to hear what Mr Condliffe wishes to say and then to determine how most efficiently it can be dealt with.
HIS HONOUR: Yes. What the Rules require, Mr Heerey, under Rule 25.03.1 is that:
The plaintiff shall give notice to a defendant of the hearing of an application for an order to show cause by serving on the defendant, by personal service . . . the application together with the affidavit or affidavits in support and a summons returnable –
in effect seeking directions.
Now, a summons was, I think, issued on behalf of the applicant seeking directions, in fact in a form which rather suggested the seeking of final relief. Yes, of course, it is for the plaintiff to abide the Rules. Yes, of course, it is for the plaintiff to serve the affidavit, but it is unfortunate, most especially when dealing with people who do not have ready access to advice, if the Minister’s representatives do not at least inquire when they receive only part of the documents that they should receive, well, is there an affidavit.
It is easy for me to criticise. It is much harder for those doing the work, especially high‑volume work, as this is, to follow it out. The criticism I make has to be tempered by the realisation that it is a real world out there with people overburdened with a lot of work. That said, it would be better in the future if, et cetera.
MR HEEREY: That is certainly noted, your Honour.
HIS HONOUR: Yes. Yes, Mr Condliffe. You said that the Tribunal in its decision at paragraph 13 refers to the notice of intention to cancel. What is the jurisdictional error that thus is revealed?
MR CONDLIFFE: I will just find my place again.
HIS HONOUR: I have diverted everyone from the real argument, have I not?
MR CONDLIFFE: Your Honour, it says there, further written notice of intention to cancel a review applicant was sent to the review applicant on 30 July 2003 stating that the same grounds for possible cancellation. In fact, if one examines the two notices they in fact contain different grounds. One may say in a sense that difference was material to the outcome and therefore the Tribunal again fell into error.
HIS HONOUR: Let it be assumed, for the purpose of argument, that each of the three errors to which you point constitutes an arguable jurisdictional error by the MRT. Why should I now grant an extension of time to make that complaint when the applicant had proceedings in the Federal Magistrates Court where the complaints could have been made and did not prosecute those proceedings to judgment?
MR CONDLIFFE: I think in the interests of justice that it would be so required, but also if there is jurisdictional error there is no issue with time and there are some exceptional special circumstances which apply in this case which negate issues relating to estoppel that may be raised. In relation to the question of mandamus, if it is found that the Tribunal did not hear the matter according to law and there is an arguable case, and it is the plaintiff’s submission that that writ should run to require it to hear the decision according to law and whilst the plaintiff has conducted other proceedings it is clear that in those other proceedings the grounds were not put and different grounds under the rubric of jurisdictional review are being put and that would be sufficient to get around some of the issues to do with estoppel.
The other matters that I referred to, these are important issues relating to the plaintiff’s future life and general wellbeing. The Minister has responded by force of statute only. The cost pressure and other resource issues on it are, to some extent, obviously not the same as apply to the plaintiff. It is a very complex bifurcated process and review is sought within that complex. It is obviously difficult for the plaintiff to seek review against his former legal representatives in this context.
The final matter, I would say, which relates to the special circumstances in this case is that the ground of review, the grounds now sought to be put by the plaintiff, raise rather important issues in relation to procedures adopted by educational institutions and the Department in relation to these sorts of cases. These are matters which have not been able to be put before due to circumstances which, to some extent, have been beyond the control of the plaintiff. That is the core of the matters that I wish to raise, your Honour. I can address further the issues with regard to estoppel and the grounds if you require.
HIS HONOUR: I do not wish at the moment to hear you on questions of estoppel. Further, for the purposes of present argument I want to proceed on the basis that one or more of the three errors you assign is at least arguable, so let us assume that you have demonstrated arguable jurisdictional error on the part of the Tribunal. The question on which I wish to focus at the moment is whether accepting that that is so, should I in those circumstances grant the extension of time sought. Is there anything further you want to say on that question of time?
MR CONDLIFFE: The only matter - my learned friend referred you to Applicants M31/2004; Ex parte MIMIA. If I could quote from that - your own judgment, the transcript in that decision, your Honour, at the bottom of page 7, the second-last paragraph, you start by saying:
Insofar as the applicants seek prohibition, that application should be refused for the reasons given by Justice McHugh . . . Prohibition will not go to the Tribunal -
et cetera. Then you outline those matters. Then in the next paragraph, the final:
For these reasons, the application for prohibition would fail. There is in my view no arguable case for its grant.
Now, presumably, if there is an arguable case there is then, in terms of your own reasoning, a reason for allowing prohibition to stand. I just conclude on that point, your Honour.
HIS HONOUR: Yes. Thank you, Mr Condliffe. Yes, Mr Heerey, you have heard the basis on which the argument is presently proceeding. Let it
be assumed for the purposes of argument against you that one or more of the assigned errors is an arguable case of jurisdictional error. What do you say about the question of extensions of time?
MR HEEREY: Your Honour, my submission is that Mr Condliffe has not identified the type of exceptional circumstances to justify the extension sought, particularly by reference to the principles expressed by Justice McHugh in Marks’ Case. His Honour made it clear that there needs to be exceptional circumstances and, with respect, the fact that obviously this case has great impact on the applicant’s personal situation, there are public interest issues in the way that the Migration Act is administered and the way the Minister acts but none of those issues take this case, with respect, out of the stream of migration litigation that goes through the courts every day and makes it at all exceptional, otherwise ‑ ‑ ‑
HIS HONOUR: Does the course of events, so far as it is revealed, concerning representation in the Federal Magistrates Court rather than in the Tribunal, present any reason to extend time or to consider extension of time, that is, is this man to bear the consequences if, as he would contend, his solicitor at that time did not deal properly with the matter in his interests?
MR HEEREY: Your Honour, there has been authority to say that an inability to access legal advice or quality legal advice is not in itself an explanation for delay.
HIS HONOUR: I understand that, but here I think underlying it all the proposition that the plaintiff may wish to propound is, “Yes, I had legal advice and it, in effect, led me off down paths I should not go because the advice was insufficient, inappropriate”. What I have in mind is if you go to the end of the Magistrate’s decision he was sufficiently alarmed about it to refer the papers to the Institute.
MR HEEREY: Yes, I noted that.
HIS HONOUR: The Magistrate was much more attuned to what had happened in the court.
MR HEEREY: Yes. But, at the same time, the Magistrate was prepared to make a decision on the merits and the Magistrate explicitly stated that he was conscious of the consequences under res judicata in taking that approach and acceded to a submission by the respondent that that was the approach that the Federal Magistrate should take in that case. So, again, the Magistrate having a far more detailed appreciation of the case than we have today accepted that there was a sufficient reason to notify the Law Institute about the conduct of the applicant’s solicitors but still dealt with the case on
its merits - not in a summary way – on its merits, not only dismissing the case brought by the current solicitors but also saying that there was no other apparent cause of action.
HIS HONOUR: Yes.
MR HEEREY: That is what I say on that point, your Honour, otherwise, I ‑ ‑ ‑
HIS HONOUR: No attempt was made to appeal the Magistrate’s order?
MR HEEREY: No, your Honour, not to the Federal Court.
MR CONDLIFFE: Not to my understanding.
MR HEEREY: No.
HIS HONOUR: Yes, thank you, Mr Heerey.
On 23 June 2005 the plaintiff commenced a proceeding in the original jurisdiction of this Court seeking relief in respect of a decision made by the Migration Review Tribunal in May 2004 affirming the cancellation of the plaintiff’s student visa by a delegate of the Minister.
The plaintiff’s student visa was cancelled on 13 August 2003. The plaintiff had first entered Australia as the holder of a student visa in August 1998 and in July 1999 had enrolled in the course leading to degrees of Bachelor of Electrical Engineering and Bachelor of Science at the University of Melbourne. Because his fees were not paid or were not paid within time, his enrolment was terminated. The plaintiff would allege that he re‑enrolled and that at the time that the department gave him notice of intention to cancel his visa he was, so he would submit, then currently enrolled as a student for the degrees I have mentioned. Be this as it may, a delegate of the Minister cancelled the plaintiff’s student visa on 13 August 2003 on the ground that he had not been enrolled as a student during the period 29 April 2002 to 16 July 2003.
The plaintiff sought review of this decision by the Migration Review Tribunal, making application for that review on 19 August 2003. The Tribunal fixed times at which the plaintiff could give evidence to the Tribunal, first on 4 March 2004 and then again on 6 April 2004, but the plaintiff did not attend either of those appointments and no representative of the plaintiff appeared on his behalf. On 6 May 2004 the Tribunal affirmed the decision of the Minister to cancel his student visa.
On 11 August 2004 the plaintiff applied to the Federal Magistrates Court for orders under section 39B of the Judiciary Act 1903 (Cth). That court fixed a timetable for the taking of interlocutory steps and thereafter it is clear that there were difficulties between the plaintiff and his then solicitor about whether that solicitor would continue to represent the plaintiff in the course of the proceedings. Notices of withdrawal were filed more than once but the solicitor, despite filing notice of withdrawal, took steps on behalf of the plaintiff for the purposes of the proceedings that had been instituted in the Federal Magistrates Court.
On 12 May 2005 the matter came before Federal Magistrate McInnes. The Magistrate examined in a little detail the course of events that had transpired between the plaintiff and his by then former solicitor. In addition, however, the Magistrate went on to consider the substance of the application that was made to the court and concluded that, as he put it, “on the substantive merits of this case” the application would fail and, further, that there was, in his Honour’s view, no arguable case. That being so, the Magistrate ordered that the proceeding be dismissed.
Only after the dismissal of those proceedings in the Federal Magistrates Court did the plaintiff institute the proceedings in the original jurisdiction of this Court which give rise to the present application. That application on behalf of the Minister is an application for orders terminating the proceeding summarily on the ground that the application insofar as it seeks mandamus and certiorari is made beyond the times fixed by the Rules of Court (see High Court Rules 2004 rule 25.07.2 and 25.06.1) for the institution of proceedings seeking that relief.
The Minister further submits that unless certiorari and mandamus would be granted neither prohibition nor injunction would lie and that it follows that the proceeding as a whole should now be held to fail. The Minister would further seek to contend that in any event the course of proceedings in the Federal Magistrates Court leads to the plaintiff being precluded from mounting the arguments which he would seek to make in support of his present application.
As I indicated to counsel in the course of oral argument, those questions about the application of doctrines of preclusion in cases where remedies of the present kind are sought are large questions upon which I do not seek to enter today. Rather, on the assumption that the plaintiff has an arguable case that the Migration Review Tribunal committed jurisdictional errors in its disposition of the matter, should any extension of time now be granted to the plaintiff for instituting the proceedings insofar as he seeks mandamus and certiorari? It is convenient to deal with the matter on the assumed basis I have stated, namely that the plaintiff has an arguable case for demonstrating jurisdictional error, because questions of extension of time can, in the particular circumstances of this case, be examined without assessing the strength or weakness of the case which the plaintiff would seek to make.
As I have sought to explain on earlier occasions (see, for example, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants M31/2004 [2004] HCATrans 318), the availability of prohibition and injunction depends upon whether the impugned decision of the Tribunal is liable to be quashed by granting certiorari. See as to that Re Ruddock; Ex parte Reyes (2000) 177 ALR 484 per Justice McHugh. Without certiorari to quash the decision of the Tribunal, prohibition would not go to the Minister to prohibit her from carrying out procedures prescribed by the Act because it would in the circumstances described be the Act which prescribes the consequences that would follow. Thus it is that the critical question in the present matter is whether any extension of time should be granted.
In my opinion, that extension should not be granted. It should not be granted because, as Justice McHugh explained in Re Commonwealth; Ex parte Marks (2000) 177 ALR 491:
[Constitutional or prerogative] writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.
In the present case relief is sought seven months out of time in the case of certiorari and 11 months out of time in the case of mandamus. It may well be that the expiration of so long a time is of itself sufficient reason to refuse extension of time save in the most exceptional cases. In the present matter, however, where the plaintiff has once resorted to the judicial power of the Commonwealth by making application in the Federal Magistrates Court for relief of the very kind which now he would seek from this Court and where that proceeding has been determined on its merits and not made the subject of any subsequent challenge by way of appeal, it would in my opinion be quite wrong now to extend the time within which proceedings in this Court might be brought.
I should add, lest it be thought that I have overlooked the matter, that I have taken into account the several complaints which the plaintiff would make about the conduct of his former solicitor in connection with the proceedings that he brought in the Federal Magistrates Court. In particular, I take account of the fact that the Federal Magistrate was sufficiently concerned about that conduct to refer the solicitor’s conduct to the relevant professional body for investigation and examination. For present purposes, however, what is critical is that the Federal Magistrate, having examined those questions of alleged professional misdoing, went on to hear and determine the matter on its merits and dismiss the proceeding. The decision of the Federal Magistrate standing, it would now be wrong, in my opinion, to grant the extension of time sought for the grant of mandamus and certiorari.
That being so, for the reasons I gave in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants M31/2004 referred to earlier, prohibition and injunction would not lie. The relief which the Minister seeks by summons should be granted. Orders should be made that the proceeding is dismissed.
Do you seek costs, Mr Heerey?
MR HEEREY: Yes, your Honour.
HIS HONOUR: Is there anything you can say in answer to that, Mr Condliffe?
MR CONDLIFFE: No, your Honour.
HIS HONOUR: The proceeding is dismissed with costs.
AT 10.35 AM THE MATTER WAS CONCLUDED
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