Geka v Commonwealth of Australia and Anor

[2005] HCATrans 180

[2005] HCATrans 180

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S479 of 2004

B e t w e e n -

TORIKA LAILANIE DAWA GEKA AN INFANT BY HER NEXT FRIEND RUPENI DRODROVEVALI GEKA

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Defendant

Summons

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 29 MARCH 2005, AT 11.03 AM

Copyright in the High Court of Australia

__________________

MR B. LEVET:   May it please your Honour, I appear for the plaintiff with my learned friend, MS B. BOSS.  (instructed by Michaela Byers Solicitor)

MR A. MARKUS:   If your Honour pleases, I appear for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Levet.

MR LEVET:   Your Honour, the case before you is, in essence, similar to the case of Singh.

HIS HONOUR:   You seek to distinguish Singh?

MR LEVET:   Yes.

HIS HONOUR:   I dissented in Singh, as you are no doubt well aware.

MR LEVET:   Yes, your Honour.

HIS HONOUR:   It seems to me that your prospects of distinguishing Singh are very poor indeed.  I have read the material that you have put before the Court.  I am not prepared to state a case in respect of it.  In my own view it has little or no prospects of success, but I think I will allow the matter to proceed, direct that the matter proceed and the Commonwealth, if it wishes, can bring an application to strike out or to demur, as it suits the Commonwealth, but I cannot see any of the Justices in the majorities in that case changing their view about the matter.

MR LEVET:   Your Honour, the only thing I could say is that their Honours, Justices Gummow, Hayne and Heydon specifically held:

The central characteristic of –

the status of alien –

is, and always has been, owing obligations (“allegiance”) to a sovereign power other than a sovereign power in question -

I suppose it is that statement on which we would seek to hang our hats at the end of the day.

HIS HONOUR:   Yes, but they also went on to speak of the Commonwealth’s power to define who an alien is.

MR LEVET:   Yes, your Honour.

HIS HONOUR:   It would be remarkable that because citizenship was foisted on Ms Singh at birth that she fails but you succeed.  In any event, the matters can be litigated in the ordinary course rather than by stating a case.  The Court is too busy to have cases before it that would seem to have almost no prospects of success.  It can be dealt with in the ordinary way and if the Judge who hears the matter thinks there is anything in it, well, it will proceed to trial or maybe the Commonwealth will demur or you will demur, as the case may be.  I do not think you have much prospect of success although if I was deciding the case anew I would be finding in your favour, but it does not seem to me, in the state of authority that you have any prospect of success in this case, or any real prospect anyway.

MR LEVET:   Your Honour.

HIS HONOUR:   Mr Markus.

MR MARKUS:   Your Honour, there is only one issue I perhaps should raise and that is whether the matter ought to be remitted to the Federal Court and I say that in the following context, your Honour.  There are, in fact, a number of matters in the Federal Court which are referred to in my friend’s written submissions and in one of those matters a case was stated to the Full Court of the Federal Court which has actually heard the matter already and is reserved.  That is the matter of Koroitamana.

Your Honour does not need the details, but in my submissions it may be appropriate simply to remit this matter rather than to take up the time of a Justice of this Court and if there is a special leave application in the Koroitamana matter then this Court can deal with that in due course.

HIS HONOUR:   Yes, that sounds sensible.  The time of Justices of this Court is at an absolute premium, Mr Levet, as you are well aware, so why should not the matter be remitted?

MR LEVET:   Your Honour, for a number of reasons, in my respectful submission.  The matter of Koroitamana is a matter in which my instructing solicitor is involved.  There were a number of matters of a like nature which went before the Federal Court.  I think there were about 10 in all.  The position that was put before the Federal Court when those matters came before it was that this matter had already been filed.

McHUGH J:   They had already been?

MR LEVET:   This matter was filed back in December.

McHUGH J:   Yes.

MR LEVET:   His Honour Justice Emmett only stated a case in Koroitamana in, I think, some date in February.

HIS HONOUR:   Yes, but that is not the point.  Section 44 was enacted to enable this Court to avoid doing the sort of thing I am doing here this morning and the Justices of this Court just cannot have their time taken up.  We can only hear 60 or 70 cases a year and they have to be the most important cases in Australia, so why should it not go down for the Federal Court?  If the Commonwealth wants to demur or if they want to state a case or if they want to strike out or if they put on a pleading and you demur why should it not be dealt with in the Federal Court and if you are unsuccessful then you have your rights through the special leave procedure.

MR LEVET:   I suppose on this basis, if I can address your Honour’s point.  Your Honour quite correctly said that this Court can only deal with the most important cases.  I recall that when Singh was before your Honour your Honour’s comments in respect of Singh were that the issue of an Australian identity was one of the most important matters that had come before the Court for some considerable time.

HIS HONOUR:   That is true but the matter came before the Court and the Court ruled on it.  The question is, then, whether in what will be interlocutory proceedings whether this Court’s time should be taken up or whether it should be dealt with by the Federal Court and it seems to me there is just no answer to the argument that rather than one of the Justices of this Court spending maybe a day or more hearing a strike‑out application that it is better to be dealt with by a justice of the Federal Court.  You have your rights.

MR LEVET:   Save and except, I suppose, this, your Honour, were your Honour to consider that this was an important point and were the matter to come before your Honour in, as it were, the original jurisdictions rather than by way of a special leave application the point would come

before your Honour, as it were, in a purer form rather than simply dealing with the extent to which a Court below might have erred.

HIS HONOUR:   If there is a substantive point in it and there is a point of constitutional law in it and it is arguable the Court would no doubt grant special leave if they thought there was an arguable error.  Anyway, I am against you, Mr Levet.

MR LEVET:   Yes, your Honour.

HIS HONOUR:   In this matter I direct that the matter be remitted to the Federal Court for further hearing and I make the ancillary orders that are usually made in such an application.

AT 11.10 AM THE MATTER WAS CONCLUDED