Hossain v Justice Robert James Bromwich of the Federal Court of Australia

[2018] HCATrans 117

[2018] HCATrans 117

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S27 of 2018

B e t w e e n -

SEIKH HOSSAIN

Plaintiff

and

JUSTICE ROBERT JAMES BROMWICH OF THE FEDERAL COURT OF AUSTRALIA

Defendant

Application to show cause

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 15 JUNE 2018, AT 9.37 AM

Copyright in the High Court of Australia

MR S. HOSSAIN appeared in person.

HER HONOUR:   If you could just move a bit closer - that is wonderful, now I can see you, great.

MR HOSSAIN:   Thank you.

HER HONOUR:   I notice there is a submitting appearance filed by the defendant.

MR HOSSAIN:   Yes, your Honour.

HER HONOUR:   Now, Mr Hossain, let us just make sure that I have all the papers that I should have.  So, as I understand it, it is the material you have filed that you rely upon.  I thought I would just indicate what I have to make sure that you and I are on the same page.

MR HOSSAIN:   Yes, please, your Honour.

HER HONOUR:   So you have an application for an order to show cause.

MR HOSSAIN:   Yes, your Honour.

HER HONOUR:   That is supported by an affidavit sworn by you on 9 February 2018?

MR HOSSAIN:   That is correct, your Honour.

HER HONOUR:   You have a summons of 14 February 2018.

MR HOSSAIN:   Yes, your Honour.

HER HONOUR:   You have an affidavit filed by you on the same day as well as some submissions the same date.

MR HOSSAIN:   That is correct, your Honour.

HER HONOUR:   You have an affidavit of service.

MR HOSSAIN:   Yes, your Honour.

HER HONOUR:   Then I have received this morning an affidavit sworn by you on 15 June together with a further outline of submissions.

MR HOSSAIN:   That is correct, your Honour.

HER HONOUR:   Thank you.

MR HOSSAIN:   You are welcome, your Honour.

HER HONOUR:   Now, do you wish to say anything to me in addition to those papers that I have read?

MR HOSSAIN:   I think the papers actually explain it properly, well, in brief and what exactly happened is there.  His Honour did not allow me to help my friend thinking that there will not be any - I will not be able to help him anything further than he can help himself.  Of course, if you see the affidavit that I have shown this morning there was actually a written submission that his Honour did not consider and if his Honour looked into that submission and also realised - he would have realised and if I could help my friend I could make the judge realise that Minister…..in a hearing at the Federal Court before Justice Rares actually undertook that they will give the whole family a second chance, that was a chance to go through an ITOA process.

But what happened is everything was going okay up to the first two correspondence from the Minister but suddenly at the last one they dropped the family and only gave a decision for the first applicant and the Federal Circuit Court, if you see the judgment, your Honour, that is not in the affidavit.  It says that the judge misunderstood that there was no claim at ITOA on behalf of the family.

HER HONOUR:   Do you understand, Mr Hossain, that the substantive matter which I will call SZRIF ‑ ‑ ‑

MR HOSSAIN:   That is correct.

HER HONOUR:   ‑ ‑ ‑ there was an application for special leave to appeal to this Court that was refused.

MR HOSSAIN:   Yes, your Honour, but ‑ ‑ ‑

HER HONOUR:   Do you understand that one of the grounds of that application for special leave - do you know whether or not it was about the conduct of the matter concerning your status before the court?  Was that issue raised, do you know?

MR HOSSAIN:   Perhaps it was, as under, like as a ground of breaching procedural fairness.

HER HONOUR:   Yes, so the difficulty I have, Mr Hossain, is that if that is right - that is one of the grounds of appeal or proposed grounds of appeal

in the special leave application in the substantive matter were the very issues you seek to raise before me.

MR HOSSAIN:   What I was trying to raise, your Honour, that if the hearing was not complete then if there is no hearing there is no judgment.  So what we are appealing at the special leave application, if we can establish that the hearing is just part heard, it was not completed then ‑ ‑ ‑

HER HONOUR:   So, as I understand, your submission is, I could have helped my friend.  I was not allowed to help my friend.  Therefore, there has been no hearing.  Therefore the matter should go back for rehearing.

MR HOSSAIN:   Not only that, your Honour.  If his Honour was looking into the papers, at least that could have helped him, I would say, 60 to 70 per cent but his Honour did not look into the paper.

HER HONOUR:   Yes, I think I understand your argument, having read the papers and listened to your oral submissions.

MR HOSSAIN:   That was actually just in the middle of there and I was pointing at this but I do not know why, maybe his Honour had a bad day or something, he was in a mood.

HER HONOUR:   Yes, all right.  Is there anything else you wish to say or have I understood your argument?

MR HOSSAIN:   I think that is it, your Honour.

HER HONOUR:   Thank you.  What I propose to do is to reserve my decision.  I need to go away and think about it and to write a judgment.

MR HOSSAIN:   Sure.

HER HONOUR:   You will be advised when the judgment will be handed down and it will not be necessary for you to attend unless you want to.

MR HOSSAIN:   Sure.

HER HONOUR:   Thank you very much.  You are excused.

AT 9.44 AM THE MATTER WAS CONCLUDED