Makdessi v MIMA

[2002] HCATrans 199

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S193 of 2001

B e t w e e n -

MOUSSA NICOLAS MAKDESSI

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for an adjournment

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 31 MAY 2002, AT 3.23 PM

Copyright in the High Court of Australia

MR N.C. POYNDER:   May it please the Court, I appear for the applicant.  instructed by Diamond Peisah & Co)

MR J.D. SMITH:  May it please the Court, I appear for the respondent.  (instructed by the Australian Government Solicitor)

MR POYNDER:   Your Honours, the applicant seeks an adjournment of this application because of the difficulties he has had in obtaining counsel to represent him at the hearing of the application.  My instructor has filed an affidavit setting out the difficulties the applicant has had in finding representation.

There were some inaccuracies in that, your Honours, and this morning my instructor made a further affidavit just correcting those inaccuracies which I will just hand up to the Court.

McHUGH J:   Well, first of all, before – what is your attitude to the adjournment application, Mr Smith?

MR SMITH:   It is opposed, your Honour.

McHUGH J:   Yes.  Yes, Mr Poynder.

MR POYNDER:   The first one is the original and the second one is a copy.  There are just a couple of minor amendments to paragraph 20, that is the last line of paragraph 20, and there is a new paragraph 29.  But other than that, that is the same as the earlier affidavit.

McHUGH J:   Yes.

MR POYNDER:   Your Honour, I have filed some authorities which are primarily taken from the Legal Reporter, just dealing with previous cases where the Court has granted adjournments where there has been difficulties in obtaining legal counsel and, in my submission, they would be relevant.

McHUGH J:   Yes, but when did you get the brief in the case?

MR POYNDER:   I received this brief yesterday.

McHUGH J:   Well, what has happened to the New South Wales Bar?  When I was a junior I would get High Court appeals the day before the case was on.

MR POYNDER:   Your Honour, my instructions were to do no more than to seek the adjournment today.  I had been approached at an earlier stage

and had turned down the brief but, be that as it may, my instructor had sought counsel elsewhere in between times and had not been able to find anyone, so when he came to me yesterday at about lunchtime my instructions were restricted to the issue of the adjournment.

McHUGH J:   So, you are not instructed to argue the appeal, is that right?

MR POYNDER:   That is correct, your Honour, yes.

CALLINAN J:   And you have not prepared it therefore?

MR POYNDER:   I have not prepared it.  I did not prepare the original grounds, your Honour.

McHUGH J:   It is a very weak case, I have to tell you, for special leave.  I do not think there is a point that has now been raised, is there, that was raised before the judge at first instance?  I suppose you are not familiar ‑ ‑ ‑

MR POYNDER:   I have read through the application book, your Honour.  I am familiar with the grounds but I am simply not in a position to argue them today.

McHUGH J:   Thank you, Mr Poynder.  What do you say, Mr Smith?

MR SMITH:   The application for adjournment is opposed on two grounds, your Honour.  The first is that there are no special leave grounds raised in the application and so the adjournment would be fruitless.  The second is that the explanation given for the application for adjournment is not sufficient to warrant an adjournment being granted.

If I can deal with the second matter first, and very quickly, your Honours.  Mr Pooley deposes to being aware of Mr de Robillard’s situation in the middle of April and in six weeks leading up to today has been unable to obtain any counsel after making what can only be described as desultory efforts, having called clerks of three sets of chambers.

McHUGH J:   I am shocked at the figures that are spoken of about doing a special leave application.  I am absolutely shocked.

CALLINAN J:   Yes.  I would have thought there would be dozens of counsel prepared to do the case for the sorts of sums of money that have been stated.

MR SMITH:   Your Honour, I would support that.

McHUGH J:   I do not know what has happened to the New South Wales Bar if you cannot get counsel to do a case like this for $4,000.  You would not need much experience of advocacy to be able to prepare this case for a special leave application.  It is just unbelievable.

MR SMITH:   The point made in the affidavit, your Honour, is that the counsel who were not willing to do it, were not willing to do it on a limited basis because there was no special leave point as it stands, and then had to prepare something completely different.

CALLINAN J:   But even still, it is not a big record.  I mean, really, as Justice McHugh said, I am shocked that nobody would do it for the sort of money that was involved.  Indeed, for half the sum of money that is being suggested, even though this is Sydney.

MR SMITH:   Your Honour, that is the point on the lack of reasonable explanation for the adjournment.

McHUGH J:   Yes.

MR SMITH:   The question about the merit is simply this:  there are two grounds in the draft notice of appeal.  The first is that the Full Court erred in not granting leave to amend the notice of appeal to argue grounds which were not argued before the primary judge, and the second ground is that it erred in respect of an argument that the Tribunal had erred by assuming that motivation can only be for a sole reason, for one of the grounds under the Convention. 

In respect of the first three, your Honours, it is clear that those grounds were not raised by the applicant who was represented at all stages before the primary judge but, further, it is clear that each of those grounds would have been futile, in any event, because of the findings of the Tribunal that there was no Convention reason or nexus in the harm that the applicant claimed to have suffered.  For those reasons, each of the grounds were not granted – the applicant was not granted leave when he was an appellant before the Full Court of the Federal Court.

McHUGH J:   It involves the liberty of the subject which actually concerns me.  At the moment the prospects of success do not seem very great.  That seems to be the view of those counsel who have examined the brief.  But the Court will be here in Sydney on Tuesday, I think every member of it.  Justice Callinan and I could hear this on Tuesday next in the afternoon.  What are your movements?

MR SMITH:   I will be available, your Honour.

McHUGH J:   Would you?

MR SMITH:   Yes, your Honour.

McHUGH J:   Mr Poynder, we are very reluctant to grant an adjournment in this case but we are prepared to grant an adjournment until 2.15 pm on Tuesday.  I am afraid that is the best we can do.  So, it gives you a weekend and Monday and Tuesday morning to prepare the case.  But if the grounds are going to be changed in any way, then a summary – Mr Smith knows this area backwards, I think it is fair to say.  I do not think he would require all that much notice, but if you are going to change any of the grounds, I think that Mr Smith should have a copy of the argument and the proposed changes no later than 1.00 pm on Monday.   So, it does not give you much time but I think, in fairness, it is the best you can hope for.

MR POYNDER:   Yes.  Can I indicate to the Court that I have not taken the brief in relation to the application at this stage.  So, it will be something that I will have to look at as well, yes.  But my instructor is at the back of the Court and he has had - - -

McHUGH J:   Yes.  Mr Smith, what is the latest you think you can handle some change in a case like this?

MR SMITH:   Your Honour, 1.00 pm on Monday, given a 2.00 pm start.

McHUGH J:   1.00 pm?

MR SMITH:   Given a 2.00 pm start, yes, your Honour.

McHUGH J:   The following day?

MR SMITH:   Yes.

CALLINAN J:   Sixty‑one hours is plenty of time for the other side to prepare something.

MR SMITH:   Your Honour, if the Court is minded to grant an adjournment, I would seek costs of today.

McHUGH J:   Yes.  Well, I do not think you can oppose that?

MR POYNDER:   I do not think so, your Honour.

McHUGH J:   No.  Very well, reluctantly, the Court will adjourn this matter until 2.15 pm on Tuesday next upon the condition that if any of the present grounds in support of the application are to be changed, that those grounds, together with the summary of argument in support of them is to be filed and served on the respondent’s solicitor by 1.00 pm on Monday.  The applicant must pay the costs thrown away by today’s proceeding.

MR POYNDER:   If it please the Court.

AT 3.34 PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 4 JUNE 2002