Korgbara v Minister for Immigration and Citizenship & Anor

[2012] HCATrans 322

[2012] HCATrans 322

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S217 of 2011

B e t w e e n -

OZONE KORGBARA

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Application for order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 DECEMBER 2012, AT 11.58 AM

Copyright in the High Court of Australia

HIS HONOUR:   Please call the plaintiff outside Court.

COURT OFFICER:   No appearance, your Honour.

MS L.B. BUCHANAN:   May it please the Court, I appear for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Ms Buchanan.

MS BUCHANAN:   Your Honour, I seek leave to file in Court two affidavits – one with respect to the last‑known address known to the Department, the other an affidavit of attempted service.

HIS HONOUR:   Yes, thank you.  I grant leave to the defendants to file in Court an affidavit sworn on 13 November 2012 by Freda Taah and an affidavit sworn on 28 November 2012 by Stephen Goodwin.

On 22 June 2011, the plaintiff filed an application for an order to show cause why prerogative writs and other relief should not run. It complained that the defendant, the second defendant and its officers had failed to observe natural justice in relation to s 351 of the Migration Act 1958 (Cth). That is a provision the plaintiff wishes to take advantage of with a view to overturning a prohibition against applying for a visa. The first defendant refused to exercise his powers under s 351.

On 7 September 2012, the High Court of Australia dismissed the applications in four representative actions being run by Parish Patience with a view to settling the position of numerous persons including the plaintiff:  Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 86 ALJR 1019; 290 ALR 616. Those cases dealt with provisions which included s 351. They held that those provisions were not conditional on observing the principles of natural justice.

The solicitors for the plaintiff sent to him a letter asking him to sign a document of instructions to discontinue this litigation in view of its lack of utility and in view of the need to avoid further costs.  The letter also said that if the plaintiff did not give those instructions, the solicitors would seek to withdraw.  The solicitors have received no response to their letter.

On 15 November 2012, the defendants filed written submissions contending that the plaintiff’s application should be dismissed with costs because of the decision in the four cases referred to.  Evidence filed in Court this morning indicates the last address of the plaintiff known to the Department of Immigration.  It also records attempts to serve the plaintiff at that address.  The process server found the property to be vacant and up for sale.  He sighted mail protruding from the letterbox addressed to the plaintiff.  He spoke to a neighbour who said that the occupants of the relevant address had moved out three or four weeks earlier.  He placed a telephone call to a relevant mobile number and found the number to be disconnected.

There is, accordingly, no evidence that the plaintiff was served personally with the defendants’ submissions.  However, rule 9.05.1 of the High Court Rules provides that the address for service of a party commencing a proceeding in the Court shall be the address stated on the originating process as that party’s address for service.  That address was the address of Parish Patience.  The defendants’ submissions were served at the address of Parish Patience before Parish Patience received leave to withdraw on 19 November 2012.  The lack of success by the solicitors in obtaining a response to their letter concerning discontinuance and withdrawal and the lack of success of the Department of Immigration’s process server suggest that any attempt to serve the defendants’ submissions personally, or notify the plaintiff of them, would have been, and will remain, futile.  It is the duty of plaintiffs to keep in touch with their solicitors in relation to the conduct of litigation and this duty the plaintiff has not fulfilled.  It is to be inferred that the plaintiff would have been aware of the decision of the four cases referred to above on 7 September 2012.

I order the plaintiff’s application for an order to show cause to be dismissed with costs. 

AT 12.03 PM THE MATTER WAS CONCLUDED