Epeabaka, Ex parte - Re Min for Immig

[1999] HCATrans 418

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M22 of 1999

In the matter of –

An application for Writs of Prohibition, Mandamus and Certiorari against PHILIP RUDDOCK, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

DR RORY HUDSON, a (former) Member of the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte –

FAUSTIN EPEABAKA

Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 23 NOVEMBER 1999, AT 10.35 AM

(Continued from 22/11/99)

Copyright in the High Court of Australia

HIS HONOUR:  Now, Mr Lucas, there were dire threats made that you should come booted and spurred to tell me why I should not dispose of the matter finally today.  Where are we up to with this matter?

MR D.L. LUCAS:   If it please the Court, I appear for the prosecutor in this matter.  (instructed by Victorian Legal Aid)

To my great relief, your Honour, I do have documents which your Honour required to be filed in the Court:  the amended ground of appeal, the outline of submissions and the list of authorities which the prosecutor seeks to rely upon.  So, if I may hand that up to the Court with apologies, your Honour, for the delay in filing of those documents.

HIS HONOUR:   What do you say, Mr Rawson, that I should do in this matter now?

MR C.L. RAWSON:   Yes, your Honour, if it please the Court, I appear again for the first respondent.  (instructed by the Australian Government Solicitor)

Your Honour, in light of the material filed by Mr Lucas this morning, which was served on myself prior to court this morning, the first respondent’s position is that the - we would submit that the application for order nisi ought to be brought on and heard as soon as possible.

HIS HONOUR:   Did I not have some application concerning allegations of a generally similar kind involving this particular former member of the Tribunal?

MR RAWSON:   You did, your Honour, yes.

HIS HONOUR:   And what happened to that?

MR RAWSON:   Those proceedings are no longer before the Court.

HIS HONOUR:   They have gone altogether, have they?

MR RAWSON:   They have, your Honour.

HIS HONOUR:   I see, yes.  So, there is no question of tacking this on to a set of existing proceedings?

MR RAWSON:   I believe not, your Honour, no.

HIS HONOUR:   Well, I simply cannot tell you when I can give this a date.  What about remitting to the Federal Court the question whether the decision induced or affected by actual bias – that is probably not raised, is it?

MR RAWSON:   It is not raised on the application that has been filed this morning, your Honour.

HIS HONOUR:   No.  Do you want to argue out the full question of whether there should be a grant of an order nisi at some point?

MR RAWSON:   Yes, your Honour.  There will be a significant factual issue that the applicant would have to cross in this matter to get an order nisi, in our submission.  In the circumstances of the extreme delay in this case, there may also be relevant discretionary considerations that might affect the grant of an order nisi.  The delay in this matter is not just of the order of two years, your Honour, but also two years in which the applicant was pursuing applications through the Federal and Full Federal Court.  So, for both of those reason we would seek an opportunity at some stage to persuade your Honour why an order nisi should not go.

HIS HONOUR:   Yes.  Although the best I can do then, I fear, is to adjourn the proceedings to a date to be fixed on not less than three days notice in writing to other parties and reserve costs.  I simply cannot tell you when I can give you a date, I am sorry.

MR RAWSON:   Yes, I understand that, your Honour.

HIS HONOUR:   Things may emerge with better clarity next year, but we will see.  If I make orders in those terms, gentlemen.

MR RAWSON:   As your Honour pleases.

MR LUCAS:   As the Court pleases.

AT 10.40 AM THE MATTER WAS ADJOURNED