Goldie & Anor, Ex parte - Re MIMA

[2001] HCATrans 75

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  
  Perth  No P1 of 2001

In the matter of -

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

First Respondent

JAMIE McCORMACK

Second Respondent

Ex parte –

BRIAN GERALD JAMES GOLDIE

and VALERIE MARGRET FINNIS

Applicants

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 28 MARCH 2001, AT 4.33 PM

Copyright in the High Court of Australia

MR A. PALUMBO:   May it please your Honour, I appear for the prosecutor/applicant.  (of Alex Palumbo)

MR P.R. MACLIVER:   I appear for the respondent, if it please your Honour.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Palumbo.

MR PALUMBO:   If it pleases your Honour.  Just by way of some preliminary issues.  On Monday, 26 March at 4.01 pm an affidavit of James Frederick McCormack and an affidavit of Peter John Corbould was served on my office.  Due to my prior commitments and the lateness in the service of these further affidavits, I have not had the opportunity to obtain my client’s instructions in relation to the matters contained therein.

Secondly, your Honour, I was advised that at approximately 1.30 this afternoon, whilst I was absent from the office, the respondent served some further outline of submissions which, of course, I have only just received here in Court today or right now and I have not had an opportunity to peruse or give any consideration to the matters raised therein, certainly on the law which the respondent would seek to rely upon.  To that end, your Honour, I am at somewhat of a disadvantage due to the lateness in filing of both - - -

HIS HONOUR:   You want an adjournment, Mr Palumbo, do you?

MR PALUMBO:   In the circumstances, your Honour, if my friend intends on relying on both the submissions and the affidavits then, in all fairness, it may be appropriate that that is the course of action that we take, your Honour.

HIS HONOUR:   All right.  Well, you sit down and I will see what Mr Macliver has to say about that, Mr Palumbo.

MR PALUMBO:   I am obliged to your Honour.

HIS HONOUR:   Mr Macliver?

MR MACLIVER:   Yes, thank you, your Honour.  I appreciate what my learned friend has had to say.  I do not have specific instructions to consent to such an adjournment but - - -

HIS HONOUR:   But you cannot make a submission that it is an unreasonable application, I gather?

MR MACLIVER:   No, I do not think I am in a position to do that, your Honour, no.

HIS HONOUR:   All right, thank you, Mr Macliver.  Mr Palumbo, I am prepared to grant an adjournment.  Obviously, Mr Macliver is not prepared to say that he will not rely upon the material that has only recently been filed and delivered.  I cannot give you another date at the moment.  All I can do is adjourn the matter to a date to be fixed, and you will be able to communicate with the Registry and obtain a date from the Deputy Registrar there.

I will order that the matter be adjourned.  Is there anything further?  Is there any issue of costs or anything of that kind?

MR PALUMBO:   I would, your Honour, seek an order of costs for today’s appearance in any event.  I do not know what my friend has to say in respect to that.  I am mindful of the fact we need to adjourn.  Perhaps your Honour might be minded to make some directions with regard to the filing of any further documents so they certainly reach both myself and the Registry in Canberra in due time to allow the papers not only to be properly perused but proper instructions to be taken thereon.

HIS HONOUR:   Yes.  Well, I will find out what Mr Macliver says about costs.  Mr Macliver?

MR MACLIVER:   Yes.  If it please your Honour, my submission in relation to costs would be that the appropriate order today is that costs of today be reserved.

HIS HONOUR:   But what does that achieve?  The Judge who ultimately comes to hear the matter will not be in any better position to deal with the costs of today than I am, will he?  Why should I not make an order for costs?  The costs have really been thrown away by the late filing and delivery of material.  Why should I not make an order for costs?

MR MACLIVER:   Your Honour, I am instructed that on the previous occasion the previous adjournment was as a result of the prosecutor’s default.

HIS HONOUR:   Did you make an application for costs then?

MR MACLIVER:   There was no hearing, your Honour.  There was no order sought.

HIS HONOUR:   But was there a hearing?  Was there an application to this Court for an adjournment?

MR MACLIVER:   No, it was just done informally, your Honour, the adjournment was agreed to ‑ ‑ ‑

HIS HONOUR:   That is entirely different, is it not?  Have you any argument why I should not award costs?

MR MACLIVER:   Your Honour, the two affidavits, as my learned friend says, were served on his office at 4 pm on Monday.  He says that due to other commitments he was not able to look at them yesterday or to take his client’s instructions yesterday.  I appreciate that that is the position, but the affidavits were served at 4 pm on Monday and that should have been sufficient time.  I appreciate that in Mr Palumbo’s own particular circumstances that was not sufficient time.

HIS HONOUR:   Yes.  Anything further?

MR MACLIVER:   No, I think that is the only thing I can usefully say, your Honour.

HIS HONOUR:   Thank you, Mr Macliver.  I do not need to hear any further from you, Mr Palumbo. 

           I order that the matter be adjourned to a date to be fixed and I order that the respondent pay the applicant’s costs of today occasioned by the adjournment which resulted from the late service of material by the respondent.  I certify for appearances by counsel.

Nothing further in this matter then?  Yes, thank you. 

AT 4.41 PM THE MATTER WAS ADJOURNED