Gamage, In the matter of a proposed application for special leave

[2009] HCATrans 305

[2009] HCATrans 305

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  

In the matter of ‑

a proposed application for special leave by INDRAJABANDU GAMAGE

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY TELEPHONE TO PERTH

ON FRIDAY, 20 NOVEMBER 2009 AT 10.05 AM

Copyright in the High Court of Australia

MR P. CORBOULD:   I appear on behalf of the Minister, your Honour.  (instructed by Australian Government Solicitor)

HIS HONOUR:   You have, as I understand it, some limited instructions to act for the Minister in respect of this matter.  Is that right?

MR CORBOULD:   Yes, that is correct.

HIS HONOUR:   Mr Corbould, can I tell you the position that I understand we have before us.  On 20 November, which is to say today, there was received in one of the Registries of the Court a handwritten letter, apparently signed by Mr Gamage, saying “Please list the application for special leave as an urgent injunction to prevent my deportation”.  There then was attached to the papers a number of documents, including a set of papers that related to some proceedings that had occurred in the Federal Court of Australia yesterday.

MR CORBOULD:   That is correct, your Honour.

HIS HONOUR:   Now, the position in which we find ourselves is that it appears to me on the face of things that Mr Gamage wishes to file application for special leave to appeal and that he wishes to apply for interim relief preventing his removal from Australia.  The grounds upon which he would seek special leave to appeal concern, it seems, primarily but not exclusively, whether he should have been afforded assistance by Mr De Alwis, but also, it seems on the face of things, that there may be some challenge to the grounds upon which the orders made by Justice McKerracher were made yesterday.

Now, in all the circumstances, it appeared to me that this may be a case in which it is appropriate for the Court to exercise powers of the kind that were exercised in Tait v The Queen 108 CLR 620, that is that it may be a case in which it was appropriate to make an order that would preserve the subject matter of the application for special leave to appeal, regardless of any consideration of its possible merit or prospect of success.

MR CORBOULD:   Yes, your Honour.

HIS HONOUR:   Now, those matters, as I understand it from the Deputy Registrar, were conveyed to you.  I understand that Mr Gamage had been intended to be removed from Australia in a very short time, but that he has since been removed from the aircraft.  Is there anything you would wish to say to me in response to what I have said?

MR CORBOULD:   Might I say that he is not on the aircraft and that the Department have aborted any plans for his removal on that flight this morning and pending a possible urgent hearing before the High Court, perhaps later today or on Monday in another Court . . . I imagine that can be made.

HIS HONOUR:   Mr Corbould, the position is this.  I have a number of single Justice matters with which I will deal on Tuesday.  I have commitments on Monday of a kind that are not unbreakable.  Nothing is unbreakable, but for my own convenience, and I emphasise for my own convenience in the disposition of other work of the Court, I would propose, at least, subject to anything that you would wish to say about that, to bring this matter on for hearing on Tuesday at a time – bearing in mind time differences – probably of 12 noon, Eastern Standard Time; 9.00 am Western Standard Time – so that in the intervening period questions of filing of the application and the like could be dealt with.

Before I ask you to respond to that, can I say to you what I presently have in mind to do, so that you can respond fully.  My present inclination, all this being subject to what you would wish to say, is to (1) order that until 4.15 pm, Eastern Daylight Savings Time, on Tuesday, 24 November 2009, or further order, the Minister not remove the proposed applicant, Mr Gamage, from Australia.  I have in mind then directing as paragraph 2 that any application for special leave and any application for further interlocutory relief and any affidavit in support be filed and served on or before 4.00 pm, Western Standard Time, on Monday, 23 November.  I have in mind as a third direction to direct that as soon as practicable the solicitor for the Minister serve on the proposed applicant a copy of this order together with a copy of the transcript of these proceedings and I would propose as a fourth order that the costs of the application be reserved.  Now, that is the proposal that I have in mind.  Is there anything you would wish to say about any aspect of those proposals?

MR CORBOULD:   Your Honour, I certainly do not have instructions to consent to those orders but I would otherwise say that they seem entirely appropriate.

HIS HONOUR:   Yes.  It is now 10.15 am, Eastern Summer Time.  I:

1.Order that until 4.15 pm, Eastern Daylight Savings Time, on Tuesday, 24 November 2009, or further order, the Minister not remove the proposed applicant, Mr Indrajabandu Gamage, from Australia.

2.Direct that any application for special leave and any application for further interlocutory relief, and any affidavit in support, be filed and served on or before 4.00 pm, Western Standard Time, on Monday, 23 November 2009.

3.Direct that, as soon as practicable, the solicitor for the Minister serve on the proposed applicant a copy of this order together with a copy of the transcript of these proceedings.

4.The costs of this application are reserved.

5.I fix 12 noon, Tuesday, 24 November 2009 as the date and time at which any application for further interlocutory relief be returnable.

Mr Corbould, is there anything that you would wish to add or say about those orders.

MR CORBOULD:   No, your Honour.

HIS HONOUR:   I will make arrangements, Mr Corbould, for the Deputy Registrar to fax to you as soon as we can a copy of the minutes of the order which I have made.  The order, of course, was made at 10.15, Eastern Daylight Savings Time, but if we provide you with a copy of the minutes in writing that may, perhaps, be of some assistance to you.

MR CORBOULD:   Yes, thank you, your Honour.

HIS HONOUR:   The time zone I should have fixed in order 5 “12 noon, Tuesday, 24 November” is 12 noon, Eastern Daylight Savings Time.  So it is 12 noon Melbourne time, 9.00 am your time, Mr Corbould.  Is that all right?

MR CORBOULD:   Yes, it is, your Honour.

HIS HONOUR:   Thank you for your assistance, Mr Corbould.  We will, as I say, let you have a fax.  We will make arrangements for the transcript to be prepared as soon as possible.  I am not sure how long that will take, but in the intervening time, you may be able to have the order extracted and served on the applicant so that he should know that he must put on any application for further relief, together with any affidavit on which he relies, as well as file his application for special leave, no later than 4.00 pm, your time, Perth time, Monday next.

MR CORBOULD:   Yes, we will ensure that, your Honour.

HIS HONOUR:   Thank you very much, Mr Corbould.

MR CORBOULD:   Thank you, your Honour.

HIS HONOUR:   I will hang up the call now.  Thank you.

AT 10.16 AM THE MATTER WAS CONCLUDED