Epeabaka, Ex parte - Re Ruddock

[1999] HCATrans 329

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 MONDAY, 11 OCTOBER 1999, AT 10.30 AM

Copyright in the High Court of Australia

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

MR C.L. RAWSON:   May it please the Court, I appear for the first respondent in this matter.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Where are we up to with this one?

MR LUCAS:   Your Honour, the matter, as the application discloses, involves the question of apprehended bias.  Manifestly, the application in its present form, and as has been referred to in the respondent’s affidavit dated 27 July, will need substantial amendment if the matter is to proceed.  The position of the prosecutor, your Honour, is to require a further short indulgence from the Court in order to be able to refer the matter to counsel.

HIS HONOUR:   How long do you say you should have, Mr Lucas?

MR LUCAS:   I have spoken recently with the counsel we intend to use in the matter who indicates that he ought to be able to provide either an opinion one way or the other or an amended application for prerogative relief within the next two weeks, your Honour.

HIS HONOUR:   Forgive me if I wonder whether that is chronological time or counsel’s time.  It is a nasty cynical approach, is it not, Mr Lucas?

MR LUCAS:   Not at all, your Honour.

HIS HONOUR:   So what directions do you say I should now give?  I am not minded to give you a general leave to amend, although it is in effect ex parte, is it not, on notice.  So your power to amend is quite large, is it not?

MR LUCAS:   I presume it would be, your Honour.  My friend from the Australian Government Solicitor might have a different view there, but as far as I am aware, in terms of the Court’s procedure, that ought not be problematic.  In any event, if leave is required, then of course it is sought, your Honour.

HIS HONOUR:   If I were to give directions that said something along these lines, Mr Lucas, that if I were to give you until 8 November to file and serve any amended grounds, together with an outline of argument in support and list of authorities, that is conflating the two steps of considering amendment but getting ready for trial, and then that would mean 29 November for respondent’s outline of argument and you would have to reply then in pretty short order, I think, by 10 December.  It is less than the

two weeks but I think that if you are to have an indulgence at the start, you may have to move the stumps at the end.

MR LUCAS:   That would be appropriate, your Honour, indeed.

HIS HONOUR:   Now, Epeabaka also, did it not, bore some connection to Eshetu Case, did it not?  Is that connection ‑ ‑ ‑

MR LUCAS:   There has been that opinion, your Honour, in terms of the 420 question, at least, and that was at the first instance, Federal Court and then at the Full Court.  I suppose in a sense Epeabaka covered the second limb, the Clayton’s Wednesbury unreasonableness, whereas Eshetu went to, as you well know, your Honour, the natural justice point.  In any event, both went down in a ball of flames, so this matter is, I suppose, unrelated to those points.

HIS HONOUR:   Yes.  Now, Mr Rawson, if I were to follow a timetable of that kind, what do you say we should do?

MR RAWSON:   I think, having regard to your Honour’s comments in the previous matter about not having any time available this side of Christmas to deal with the matter, those orders would be agreeable to the respondent.  In an ideal world, in the circumstances of this matter, which the respondent has been putting to the prosecutor since shortly after the matter was filed that the application was futile, we would seek an earlier audience than that but, having regard to your Honour’s earlier comments, I do not think I can ‑ ‑ ‑

HIS HONOUR:   My difficulty is this, Mr Rawson.  We have the Perth sittings next week.  I have two weeks off, then the Canberra sittings; a week, then the December sittings.  I speak gaily of two weeks off.  There has to be some time to do some writing.  I really am very hesitant about pulling on a major contested hearing in those periods.

MR RAWSON:   There would not be any contest on the papers as they exist at the moment, your Honour.  The application is futile.  But having regard to your Honour’s comments ‑ ‑ ‑

HIS HONOUR:   They want to have one last go at it, by the sound of it.

MR RAWSON:   Yes, your Honour.  In those circumstances, we would be agreeable to the timetable proposed.

HIS HONOUR:   In this matter there will be directions as follows:

1.  Direct that on or before 8 November 1999 the applicant file and serve any amended grounds on which he intends to rely, together with an outline of argument and list of authorities in support of the application for order nisi;

2.  Direct that on or before 29 November 1999 the respondent file and serve an outline of argument and list of authorities in opposition to the application for order nisi;

3.  Direct that on or before 10 December 1999 the applicant file and serve outline of argument in reply to respondent’s submissions;

4.  Reserve costs.

Forgive me, Mr Lucas, do I need to certify for counsel or not?  Are you appearing as counsel or solicitor?

MR LUCAS:   I am appearing as solicitor obviously this morning, your Honour, but I have no intention of actually, if the matter comes to full argument, trying it myself.

HIS HONOUR:   I understand that.  I will simply reserve costs.

MR LUCAS:   Thank you.

MR RAWSON:   As your Honour pleases.

HIS HONOUR:   Call the next matter, Ilamsingham.

AT 10.37 AM THE MATTER WAS CONCLUDED