Fejzullahu and Ors, Ex parte - Re Minister for Immigration

[2000] HCATrans 138

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S33 of 1999

B e t w e e n -

GEORGE GREER

Applicant

and

DEPUTY COMMISSIONER OF TAXATION

Respondent

Application to set aside decision of Gleeson CJ

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 28 MARCH 2000, AT 9.30 AM

Copyright in the High Court of Australia

MR G. GREER appeared in person

MR R.S. QUINN:   I appear for the respondent, your Honour.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Mr Greer, I received a message that you were going to ask for an adjournment of these proceedings, is that correct?

MR GREER:   It is our intention, yes, your Honour.

HIS HONOUR:   Are you in a position to proceed with the matter now?

MR QUINN:   I am in a position to proceed, your Honour.

HIS HONOUR:   What is your attitude to the application for the adjournment?

MR QUINN:   It would be opposed, your Honour.  There has been a long history of such eleventh hour adjournments in these matters and one does not have to go further really than the judgments of Justice - - -

HIS HONOUR:   I will hear what Mr Greer has to say first and then you can reply.  Come to the centre, please, Mr Greer, and speak up if you will and tell me why you say the matter should be adjourned.

MR GREER:   Well, I only received notification by way of a letter – original letter dated 21 March this year - received notification yesterday morning in yesterday morning’s mail.  That was somewhere around about the 10 or 11 o’clock mark.  I had prior been in touch with a Mr Levick who is the solicitor on the record for these proceedings.  On Friday, he actually phoned me in regards to an interlocutory matter regards these proceedings – indicated that there was some notification he had received in regards to ‑ ‑ ‑

HIS HONOUR:   When did you receive that intimation?  Last Friday was it?

MR GREER:   Only from a phone call from his office, yes.  From Mr Levick personally.

HIS HONOUR:   So that you knew that the proceedings would be listed before the Court today, is that correct, last Friday?

MR GREER:   Only as late as yesterday morning by a letter I received in the mail.

HIS HONOUR:   Now, let me get it clear.  You received a phone call from Mr Levick who, apparently, has been assisting you - - -

MR GREER:   Yes, in relation to a matter indirectly related to these proceedings.

HIS HONOUR:   I understand.  You have another proceeding before the Court, do you?

MR GREER:   Yes.

HIS HONOUR:   I follow.  Well now, Mr Levick told you last Friday that this matter would be likely to be listed today, is that correct?

MR GREER:   No, not this matter.  Another matter indirectly related to these proceedings.

HIS HONOUR:   Did he, Mr Lervick, mention anything about these proceedings?

MR GREER:   No, he did not, no.

HIS HONOUR:   So that the first knowledge you had that these proceedings would be listed was the receipt of the letter at 11 o’clock yesterday morning?

MR GREER:   Yesterday morning when I received the mail.  In yesterday morning’s mail.  It is in the Five Dock area.  As soon as I received that I caused a letter to be prepared – I have a copy of it here – to the High Court and I attended Mr Levick’s office with that letter and from his office - - -

HIS HONOUR:   I do not have that letter.  Have you shown that to Mr Quinn?

MR GREER:   What I am saying is, it was faxed to the High Court at two minutes past one from Mr Levick’s office.  I have the receipt here for that fax.

HIS HONOUR:   Have you given a copy of that to Mr Quinn?

MR GREER:   Yes, a copy was faxed to his office too.

HIS HONOUR:   Hand the copy of the letter up to me, please.

MR GREER:   I have the original here.  A copy was faxed to the AGS Office at - - -

HIS HONOUR:   Just a moment, I will take time to look at this letter which I will mark for identification.

MFI  MFI 1…..Letter faxed from Mr Levick’s office.

MR GREER:   It is the only copy I have, your Honour.

HIS HONOUR:   Yes, I have read that.

MR GREER:   Yes.  Well, as I say, I faxed a copy of that to the High Court Office at about 1.02 yesterday from Mr Levick’s office, using his fax machine.  Actually, his secretary faxed it on my behalf in Mr Levick’s presence.

HIS HONOUR:   I understand that a lot of these problems arise because you have not given a telephone number where you can be contacted.

MR GREER:   Well, as I explained to the Court staff, I live at home with my mother.  She has a silent listed number.  Unless I can get her permission, I am not at liberty to be able to give it out.

HIS HONOUR:   Yes, but you must have a neighbour or a friend or somebody who has a telephone number.  I mean, it is 130 years since Alexander Graham Bell invented the telephone.  It is absurd to be – indeed, I think it is trifling with the High Court of Australia for you not to give a telephone number where you can be contacted.

MR GREER:   Well, Mr Levick has his phone number and fax number on the record, I believe, since he is the solicitor on the record and since he is acting for me to some extent - - -

HIS HONOUR:   Is it your intention to have counsel appear for you in this application?

MR GREER:   Yes.  I believe it is going to be Mr David Fitzgibbon but, on my inquiries of Mr Levick yesterday, neither him nor Mr Fitzgibbon were available at such short notice since they are about the only two lawyers in this State that deal with this type of defence.

HIS HONOUR:   Yes, very well.  Well, just sit down for a moment, Mr Greer.

MR GREER:   Notwithstanding that, may it assist the Court, I received another copy of the letter of the 21st which is the letter from the High Court by express post, compliments of the High Court, yesterday upon my return home about 6 o’clock.  That could be as a result of my fax to the High Court.  I am unsure.

HIS HONOUR:   Is that letter a letter from the solicitor?

MR GREER:   No, from the High Court, again.  It is a duplicate copy of the letter of the 21st.  I merely suspect that it may have come as a result of my fax earlier in the day to the High Court.  That is all I can assume.

HIS HONOUR:   Very well.  Mr Quinn, it is true that this matter has a very long history but it does appear, according to Mr Greer, that he only received notification of the listing today at about 11 o’clock yesterday and he says that he wants to have counsel represent him in the proceedings.  That would certainly be of assistance to the Court and it would not be reasonable to expect that counsel could be secured within a space of a day to come before the Court.  Unless you can show that there is some injustice or irremedial disadvantage that you suffer because of listing and proceeding with the matter today, it would seem to me that the interests of justice would require some short adjournment.

MR QUINN:   I understand that point, your Honour.  I cannot really address the question when Mr Greer received notification.  I certainly got notification in the middle of last week. 

HIS HONOUR:   You have an ordinary telephone number.  You can be telephoned and notified as quickly as possible.

MR QUINN:   True.

HIS HONOUR:   But Mr Greer, for various reasons, does not have that facility, so he says, so that - - -

MR QUINN:   The only matter I can really put, your Honour, on that question is the question whether there is any utility in adjourning these proceedings anyway, for this reason, that the matters in the summons and the application have been - - -

HIS HONOUR:   Yes, I have read the summons and I have read the materials that have been supplied by the respondent.

MR QUINN:   I mean, that is the only matter I can really put to your Honour as to whether there is any utility, given that the special leave application and the notice of appeal does not seem to arise out of the earlier proceedings which had references to whether the person is a dissatisfied person, being Mr Greer, under the Taxation Administration Act.  Well, this was a sequestration order.  It was nothing to do with proceedings in the AAT.

The other matters are the question of whether - in his application for special leave and draft notice of appeal is the Dietrich point.  Well, I do not see that that is a matter of public importance that has not already been dealt with before and the submissions address the question whether that principle is available in civil proceedings in any event.  They seem to be the two matters.  The applicant’s summary of argument really deals with this whole range of matters.

HIS HONOUR:   Yes, I have looked at that but, in a sense, the more apparently difficult the argument of an applicant, the more important it is that the applicant should have the assistance of counsel and that the Court should have the assistance of counsel.

MR QUINN:   Yes.  I cannot really put it any higher than that, in the circumstances. 

HIS HONOUR:   I would be minded to adjourn the matter and to make the costs of the proceedings today costs in the application.

MR QUINN:   Yes, if the Court pleases.

HIS HONOUR:   I would be minded to list the matter in the week of 24 April, which is the ANZAC Day week and, therefore, it would be on some day during that week.

Mr Greer, given the difficulties you have with a telephone, you will have to keep in touch with the Registrar of the Court and the Court will not tolerate another indication that you were not on proper notice of the application.  It will be expected that on the next occasion the matter will proceed and you will, either with counsel or without counsel, have to be in a position to advance your argument.

MR GREER:   Yes.

HIS HONOUR:   I will simply stand the matter over to a date to be fixed by the Registrar in the week of 24 April, such date to be notified to the

parties one week before the hearing.  The costs of the application before the Court today will be costs in the application so returned.

MR QUINN:   If the Court pleases.

AT 9.41 AM THE MATTER WAS ADJOURNED