Goddard v The Queen

[2000] HCATrans 477

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  
  Melbourne  No M75 of 2000

In the matter of -

An application for Writs of Prohibition, Certiorari and Mandamus, or Injunctions or Declaration, against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

DR PETER NYGH (In his capacity as Principal Member of the Refugee Review Tribunal)

Second Respondent

DR RORY HUDSON (In his capacity as constituting the Refugee Review Tribunal)

Third Respondent

Ex parte –

CHRISTY PREMANANDARAJAH JAMES

Prosecutor/Applicant

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 AUGUST 2000, AT 9.35 AM

Copyright in the High Court of Australia

____________

MR A.F.L. KROHN:   May it please the Court, I appear for the prosecutor.  I apologise for my late attendance.  (instructed by Ravi James & Associates)

MR D.I. STAR:   Your Honour, I appear on behalf of the first respondent, the Minister for Immigration and Multicultural Affairs.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Now, again, I have looked at the papers in the matter.  The matter raises a number of issues but, amongst others, subject to questions of extension of time, it would seem to raise matters of a kind that will be litigated in the Full Court in the matter of Epeabaka.

MR KROHN:   I believe that is so, your Honour.

HIS HONOUR:   That being so, it might be of assistance if I first heard from Mr Star about why I should enter upon the questions of extension of time until we know what the substantive position is following the hearing and determination of Epeabaka.

MR KROHN:   If it please your Honour.

HIS HONOUR:   Mr Star, why should I dive into the morass of the question of extension of time?

MR STAR:   Your Honour, it is an argument which should not take long and if ‑ ‑ ‑

HIS HONOUR:   That is an invitation to judicial indolence, Mr Star; very attractive argument but – yes?

MR STAR:   Your Honour, if the matter can be disposed of quickly, so much the better for everybody, being the prosecutor, the respondent and also the Court list.  If the prosecutor gets over that hurdle, that leaves four grounds.  Three of those grounds have nothing to do with Epeabaka.

HIS HONOUR:   I understand that and I would understand you would wish to say that those grounds would have no prospect.

MR STAR:   That is correct.  Again, that seems to me to be a very confined and short argument.  So, your Honour, I put it on the basis that, really, for the efficient management of migration decision making for the Minister, for the prosecutor who should also know where he stands sooner rather than later - - -

HIS HONOUR:   The efficient management of migration decision making for the Minister is an unusual concept, given the bifurcation of jurisdiction that this Court now must suffer.  It is an unusual submission for the Minister to make and one which would require a great deal of development were it to be persuasive. 

This Court is presently troubled by these matters because of the frame of the legislation.  That is not an efficient use of this Court’s time nor does it promote efficient disposition of migration decisions for there is resort to the judicial power of the Commonwealth, twice, rather than one.  That is unfortunate.  The relevant time that I would have to consider is, on your submission, what period, Mr Star, between what events?

MR STAR:   As in the period of delay, your Honour?

HIS HONOUR:   Yes.  What do you say are the start and finishing points for consideration of period of delay?

MR STAR:   Two alternative submissions, your Honour:  firstly, from the time when the decision of the RRT was made which was 14 September 1998, some 22.5 months ago.  My fall-back position, your Honour, if I need to go there, is at least from the time that this honourable Court decided the matter of Eshetu - - -

HIS HONOUR:   Yes.  Why is the relevant time not that fixed by the decision of Justice Sundberg and, if that is so, where lies your case for delay, given that there is this bifurcation of jurisdiction which is foisted upon us?

MR STAR:   Your Honour, because at least some of the matters could not have been argued before Justice Sundberg, then that cannot be the appropriate date for at least that matter because Justice Sundberg’s decision is irrelevant to that first ground, namely, apprehension of bias.

HIS HONOUR:   And what would have been the attitude of the Minister had this applicant instituted separate proceedings and what would have been the attitude of this Court had separate proceedings been instituted simultaneously?  It would have been:  go to the Federal Court and litigate it there.  Where lies the difficulty for the Minister in the circumstances that now have arisen, that are not of the Commonwealth’s own creation, given the scheme, as I say, they foist upon us all?

MR STAR:   Your Honour, if – and it is not unusual these days for a matter under 75(v) to be issued in this Court and then your Honour may remit those parts which the Federal Court could deal with and would keep in this Court the matters which it cannot remit.  Your Honour, a litigant, a prosecutor, has the obligation, in order to reserve their position, to do so within the time limits prescribed by the Court.

Let me say this, your Honour.  Your Honour has alluded to the problems of bifurcation under the current legislation and the comments of many of the Judges of this Court, including Justice McHugh in Durairajasingham, and the recent experience of your Honour, would indicate that in some sense the floodgates have opened in terms of matters being issued in this Court.  Perhaps the only thing left to this Court in this context is requiring the time limits of the prerogative relief because perhaps they are the only thing left under the current regime because - - -

HIS HONOUR:   And that puts the consequences to this Court well and truly ahead of the consequences to the individual who would seek to resort to the judicial power of the Commonwealth for the enforcement of law and for the enforcement of administration according to law.  Again, a submission of quite great width which would require close consideration.  It is one that would merit a deal of consideration, Mr Star, the notion that the interests of the individual enforcing proper administration, so they would say, according to law should be subsumed in that way.

MR STAR:   Your Honour, the effect, if there is an enlargement of time, is that it means that in all these cases people can litigate in the Federal Court, see how they go, and then subsequently, years after they say that they had a complaint which could only have been issued in this Court, then they issue in the High Court.  Now, that is a very serious situation which exacerbates the situation which your Honour has put to me.  Not only that, your Honour, it is the principle too.  If it is good in this context, it is good in other administrative law contexts too, that perhaps - - -

HIS HONOUR:   Migration is, I think, the only area where there is this division of jurisdiction, is it not?

MR STAR:   That is correct, your Honour, but in terms of the time period in which to issue relief in this Court, your Honour, the submission made to you that an application should have been made much earlier in order to reserve their position in this Court.  Now, if they choose to do otherwise - and the material before your Honour indicates that this prosecutor had solicitors throughout who acted upon his instructions – they do so at their own peril.

HIS HONOUR:   Do you point to any prejudice that would be suffered if the question of extension of time was stood over until after the decision in Epeabaka?

MR STAR:   No, your Honour, if my position in relation to arguing these matters is stood over too, only that it would be my submission in preference to have the matter dealt with sooner rather than later but I cannot put it more highly than that if my position is reserved until a later time.

HIS HONOUR:   Yes.  That is, what I would have in mind is simply standing the matter out of the list generally with liberty to bring on, on some relatively short period of notice, the expectation being that it would come on after the decision in Epeabaka, absent some intervening change in circumstance.  Do you want to be heard against my adopting that course?

MR STAR:   No, if your Honour pleases.

HIS HONOUR:   Yes.  Mr Krohn, what do you say if I were to adopt a course of that kind?

MR KROHN:   That, in my respectful submission, would be entirely appropriate, your Honour.

HIS HONOUR:   Yes.  Then the application, including the prosecutor’s application for extension of time, is adjourned to a date to be fixed.  The prosecutor and the Minister each have liberty to apply on not less than three days notice in writing to the other.  I reserve the costs and certify for counsel. 

Is there anything else that I would need to do?

MR KROHN:   No, if it please, your Honour.

MR STAR:   If your Honour pleases.

HIS HONOUR:   Those orders are made, and I will adjourn.

AT 9.46 AM THE MATTER WAS CONCLUDED