MIP, Ex parte.doc- Re Hudson

[1999] HCATrans 67

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M30 of 1999

In the matter of -

An application for Writs of Certiorari and Prohibition and Orders of Mandamus against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

DR RORY HUDSON (who constituted the Refugee Review Tribunal which determined RRT reference V97/0512 on 25 November 1997)

Second Respondent

Ex parte -

"M I P"

Prosecutor/Applicant

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 29 MARCH 1999, AT 2.15 PM

(Continued from 17/3/99)

Copyright in the High Court of Australia

MR T.V. HURLEY:   If it please your Honour, I continue to appear on behalf of the prosecutor/applicant.  (instructed by Victoria Legal Aid)

MR C. GUNST, QC:   If your Honour pleases, I appear with my learned friend, MR W.S. MOSLEY, on behalf of the first respondent, the Minister for Immigration.  (instructed by the Australian Government Solicitor).  May we also indicate, your Honour, that the third respondent, the proposed third respondent in our learned friend’s new proposed order, the principal member of the Refugee Review Tribunal indicates that he will take no part in the proceeding but abide any order that the Court might make save as to costs.

HIS HONOUR:   Thank you, Mr Gunst.  Now, Mr Hurley, the material that I have looked at thus far since the last hearing on 17 March has principally been that filed on behalf of the respondents.  I have looked at, although only briefly, the material filed in support of the application.  Can you tell me what course you say I should now take for the further disposition of the proceeding?

MR HURLEY:   Your Honour, it is our submission that your Honour should find that an order nisi should issue against the three respondents in the proposed draft order that was filed last Monday, and then adjourn my client’s application for remitter of the further proceedings in that pending the decision of this Court in the matters reserved before it of Abebe and Eshetu.

HIS HONOUR:   Yes.  Why should I adjourn it? 

MR HURLEY:   Because, your Honour, it is an unresolved question as to whether the Federal Court – we submit the Federal Court has jurisdiction to entertain the matter and the dispute between the parties under section 44(1) of the Judiciary Act but the validity of that submission is, itself, reserved before this Court.  If your Honour remitted it and it was discovered the Federal Court did not have that jurisdiction, then the proceeding would presumably have to be recommenced in this Court again.  We therefore submit it is convenient that the matter remain here pending the decision in Abebe and Eshetu.

HIS HONOUR:   Yes.  I am just looking at the draft order nisi.  The draft you have gives only the one ground, does it not?

MR HURLEY:   It does, your Honour.  There were two agitated previously but only one ground is now pursued.

HIS HONOUR:   Is that a ground that says, amongst other things, at the end of it that because in making his decision, the second respondent was, at law “affected by bias”?

MR HURLEY:   Yes, your Honour.

HIS HONOUR:   Is that an allegation of actual bias or something else?

MR HURLEY:   No, your Honour, it is an allegation of apprehended bias.

HIS HONOUR:   In particular, do you seek to agitate a ground of a kind described in 476(1)(f) of the Act “that the decision was induced or affected by fraud or by actual bias”?

MR HURLEY:   No, your Honour, no. 

HIS HONOUR:   If, then, Part 8 of the Act were later to be held to be valid, the allegation you make would be an allegation that could be sustained only in this Court, if at all?

MR HURLEY:   Yes, your Honour, yes.

HIS HONOUR:   If, by contrast, in the current proceedings, the provisions of Part 8 were to be found in part or whole to be invalid, would the ground, on that hypothesis, that you wish to agitate be a ground that could, on remitter to the Federal Court, be agitated in that court?

MR HURLEY:   That is our understanding of what would be the position, your Honour, but we would have to study the reasons to see what found favour and what did not in this Court because the matter is raised in the matter of Eshetu, questions of bias and procedure and substantial justice.

HIS HONOUR:   Well, Eshetu, more than anything, as I understand it, focuses, or at least focuses in part, on what, if any, significance is to be attached to the provisions of 420(2) and whether 420(2) is to be regarded as creating a separate and independent or additional ground of attack.  There are then other consequential issues that seem to me to follow, but is that right?

MR HURLEY:   That is our understanding, your Honour, that if Part 8 is construed one way, then this matter could be remitted to the Federal Court.

HIS HONOUR:   If ground (1) or the only ground that you wish to agitate is one of apprehended bias, it may well be that there needs to be some surgery done on the words.  Let us leave that aside for the moment.  If the heart of your complaint is a complaint of apprehended bias, that is a complaint, is it not, that would affect or may arguably be said to affect much of what has been done by the Tribunal constituted in the way in which it was in this case?  Is that not right?

MR HURLEY:   Yes, your Honour, it would.

HIS HONOUR:   That being so, a question arises whether I should not, in any event, make an order of the kind made in Abebe [No 2] 72 ALJR 630, and that is make an order directing that the application for relief under 75(v) be made to a Full Court in the first instance, and that is, deal with the issue once and for all in the Full Court. What do you say as to that?

MR HURLEY:   Your Honour, my client wishes to have the matter determined speedily and efficaciously as possible.  We would not oppose that matter, your Honour.  Our preference has always been that it be remitted to the Federal Court.

HIS HONOUR:   Can I be quite blunt with you about it, Mr Hurley.  If your client were to have the matter heard by a single Justice and determined adversely, those advising him would, I suspect, give the most anxious consideration to whether an appeal should be brought.

MR HURLEY:   Yes, your Honour.

HIS HONOUR:   That would occupy another round and occupy the time of the Court again.  If we put it into a Full Court first off, the issue is dealt with once and once for all.

MR HURLEY:   That is so, your Honour.

HIS HONOUR:   Are you conscious of any relevant dispute as to fact following the filing of material on the part of the respondents?

MR HURLEY:   Only one matter arises, your Honour, which only came to our attention on receiving the full home page.  If your Honour has exhibit MN29 to the affidavit of Maria Ngo – and, I regret I have not been able to raise this with my learned friend - - -

HIS HONOUR:   I seem to have about 20 copies of the home page; about three different web browsers and with or without pics but there we are.

MR HURLEY:   Your Honour, the one that I have exhibited to Ms Ngo’s affidavit is MN29 has on the top right-hand page page numbers and heavy type.  If I take your Honour to what I believe is page 9, the very last paragraph, your Honour commences with the phrase:

I have an interest also in Hinduism and Taoism, which share many things in common with Buddhism. 

And then there are some comments made, your Honour, that might be thought to relate directly to the claims my client was making in front of the RRT.  We did not have a full copy of the home page before this affidavit, so, your Honour, it is not a dispute as to fact, but is another ground upon which we would seek to raise apprehended bias, another particular of published statement, as it were.

HIS HONOUR:   That, I can understand, but will you later wish to contend for any finding of fact different from the findings of fact that might be made based on the respondent’s material as to what transpired at the Immigration Detention Centre, as to the course of events in connection with this man’s applications to various bodies in respect of his claims to refugee status and the like?

MR HURLEY:   No, your Honour.

HIS HONOUR:   Then it may be necessary, may it not, in any event, whatever course I take, for you to first give some attention to whether the ground as framed accurately reflects a claim of apprehended bias and, secondly, to give some consideration, perhaps, to whether it is desirable or necessary to particularise the bias that was apprehended or is now alleged to have been apprehended or could be.

MR HURLEY:   Yes, your Honour.

HIS HONOUR:   Well, Mr Gunst, I am aware of the fact that you would wish to contend that the case is so thin that it should not be permitted to proceed beyond today?

MR G UNST:   That is the submission we make in the written submissions that we filed, your Honour.  We hear what your Honour said and if an order nisi is to be granted, we would not resist the course that your Honour has proposed for, broadly, the reasons your Honour has advanced.  But can I come back to that because we do not want to leave it?

HIS HONOUR:   Yes.

MR G UNST:   We say that there is no – not even a bare arguable case and we say it based upon the authorities that we have set out in our written submissions.  On the authorities, we say, quite clearly, an apprehension of bias must be because of a pre-judgment of either a person – that is, the credibility of a person who is to be a witness in the later proceeding, or of an issue that is to be ventilated in that later proceeding.  That is the extent of the authorities, and there are a number of them, and we have set them all out for your Honour in the written submissions commencing on page 3.  We have some copies if your Honour wishes to see them.

Now, what we say here is these comments go to neither of those two things, and that is the essence of the argument, your Honour.  The comments that are made do not go to any of the persons that gave evidence before the Tribunal.  They do not go to the applicant or to the lady who was called to give evidence on his behalf.  Nor do they go to any issue as such before the Tribunal.

HIS HONOUR:   What of the comments to which Mr Hurley most recently referred, appearing at page 9 of exhibit MN29, which include expressions of view about Christianity, its value and its values?

MR G UNST:   Your Honour, we would say first of all it is consistent with the tone of the comments throughout this home page.  It shows a free thinking and independent mind prepared to express views that perhaps diverge from the mainstream but which do not descend to particularity so far as individuals are concerned.  At the bottom of the page that our learned friend has taken your Honour to, he expresses interest in Hinduism and Taoism and Buddhism.  Elsewhere, in fact, in the middle of that page, the member says that he is a Buddhist in the sense that he accepts or believes “most of what Buddha taught”.  Your Honour sees that in the middle of that same page.  The one that is paginated 9.

HIS HONOUR:   Yes.

MR G UNST:   What he is saying here is he does not have much time for Christianity but it is immediately followed with “many Christians are fine human beings, and that Christianity has done some good in the world” and so on, so it is a dispute not with the individuals but with some of the more inflexible authoritarian forms of Christianity perhaps.

If the words had said, “There are too many Christians in this country already and I don’t think there should be any more”, to put it plainly, then our argument would be a difficult one but it is far from that.  It is a question of argument and we understand how our learned friend puts it but we say it does not take the matter any further.

HIS HONOUR:   But is that not the difficulty, Mr Gunst, it is a matter for argument?  In the hands of the uninformed third party, there are statements there which might bear more than one construction.

MR G UNST:   We would hark back to and place some weight upon what Sir Garfield Barwick said in General Steel, the case on striking out a case as being non-arguable.  What the Chief Justice - - -

HIS HONOUR:   Argument, perhaps even extensive argument, may be necessary to evoke the futility of the claim, Mr Gunst.

MR G UNST:   Exactly so, your Honour.

HIS HONOUR:   I, too, have cited that on occasions and usually when, on the other side, I cited Day v The Victorian Railways Commissioner, as no doubt you did.

MR G UNST:   Yes.  Merely because one can have a discussion that goes for some minutes about the issue one way or the other does not mean that it is arguable in the end.

HIS HONOUR:   I understand that.

MR G UNST:   And what we say is on the authority – and we have set it out.  We do not want to repeat it.  It is in our written submissions and your Honour has had the advantage of seeing them.  We have set out the passages at some length for that very purpose.  Apprehended bias must go to either pre-judging the credibility of a person who is to give evidence. Whether it is a party or an essential witness seems to be immaterial. 

HIS HONOUR:   Does that not illustrate the difficulty in this point?  It seems to me there are at least two levels of issue that are raised here.  First, what, if any, influence principles developed in connection with adversary proceedings should play in proceedings which, at least, on one view of the matter, are not adversary proceedings.  They are pure inquiry by the Executive to determine a difficult question about a well-founded fear.

MR G UNST:   That is an interesting question, your Honour, and true it is all the authorities arise in relation to adversary proceedings.

HIS HONOUR:   Whether apprehended bias has any application in this field of discourse is a question that I think may admit of some argument.  Then, of course, one needs to get to the further question of was what was said of significance for the application of whatever test may be thought applicable.  The difficulty I have with it is that where Justice Heerey, you say uninvited and unsolicited, and in - - -

MR G UNST:   Yes.  I will say something about that in a moment if I may, your Honour.

HIS HONOUR:   - - - in circumstances which, I think the Americans would describe as “improvidently” formed views on the issue, why should I turn round and say it is beyond argument that that view is wrong?

MR G UNST:   Because, as we have said in our submission, your Honour, it was not in fact argued.

HIS HONOUR:   Let that be assumed - - -

MR G UNST:   If there was a judgment that was inter partes after argument, then we would be in a very difficult position.  It would be very hard to say it is not arguable if a judge of the Federal Court has so held.  But, in fact, as your Honour sees from the affidavit of Ms Ngo, what happened was, the applicant alleged actual bias, conscious of the proposition that Part 8 excluded a claim for apprehended bias.  Neither the applicant’s application nor the outline of argument that was filed – contentions I think they are called – addressed or urged the question of apprehended bias.  It was in fact mentioned in argument, I should say, for the sake of completeness, your Honour, in the transcript in that case but only by way of contradistinction - only by counsel for the respondent, I might say, by contradistinction with the test for actual bias.

Indeed, his Honour went on to say – and your Honour might have seen the notice of appeal in that other matter.  His Honour, in fact, stopped counsel for the respondent – it is on the transcript in that case – and said, “No”, in effect, “I’m not deciding this case on the question of bias.  Talk about the other issues.”  So, people, as I am informed, were rather startled when his Honour’s judgment came out.  So, what we say is it was not in fact argued and commended itself as, what one might thing, a shorthand way of disposing of a case to his Honour, with respect to his Honour, does not make it any more or the less arguable.  That is the way we put it, your Honour.

HIS HONOUR:   The difficulty I have with that, Mr Gunst, is that the point not having been debated before his Honour, on your contention, it was of such starkness as to leap off the page at his Honour and induce him to include it in his reasons.  That is the contrary view that is put against you.  I must say, Mr Gunst, I am very reluctant to say, where there is a judgment of a judge of the Federal Court saying this displays an apprehension of bias to the reasonable onlooker, to say, flatly, “No, that’s beyond argument and unarguably wrong.”

MR G UNST:   We understand the force of that argument, your Honour.  We put our submissions.  We put them as forcefully as we can.  We acknowledge that the test – the threshold is a low one.

HIS HONOUR:   Yes.  I smile because one other member of the Bench in response to a submission that was said to be put forcefully replied, “You can put it with all force you like but would you please put it with cogency”.

MR G UNST:   Well, I hope I have done that at least this far, your Honour.  Having said that, we accept what your Honour says, that the point is a broad one so far as this Tribunal Member’s decisions are concerned.  We should tell your Honour – my learned friend reminds me it is in his submissions – this particular Tribunal Member has, in fact, since retired but, nonetheless, there will be a period of time in which decisions – certainly, any decision involving findings as to credibility, but perhaps all decisions, might be thought to be tainted because the principle, if it is a good one, is independent of the facts of any given case.

HIS HONOUR:   The consequence of my putting it into the Full Court would seem to me to be inevitably a continuation of the injunction but I would need to hear what you had to say on that aspect of the matter if there were anything separate that you wanted to urge.

MR G UNST:   Your Honour, we have some submissions in the last couple of pages about injunction.  What we say is that – well, the threshold for an order nisi is a very low one.  The view that the Court forms as to the prospect of success is a relevant matter to take into account on the balance of convenience upon the authorities.

HIS HONOUR:   The subject matter of the proceeding quite literally will have gone offshore if injunction does not go, will it not?

MR G UNST:   Yes.

HIS HONOUR:   The prospect of this man continuing these proceedings by remote control, whence he has gone - - -

MR G UNST:   Well, it is an appeal on a point of law that will not require any evidence, of course, your Honour, but to the contrary - - -

HIS HONOUR:   Who is going to be doing the instructing of Mr Hurley?  Where is he going to get his retainer from, Mr Gunst?  It has a delicious air of unreality, does it not?

MR G UNST:   There are difficulties there, your Honour.  We have addressed the question of the evidence.  There are several affidavits that put a very bleak picture and we have taken your Honour to some of the exhibits that in fact do not bear out and depart, really, quite markedly from what is said in the affidavit.

HIS HONOUR:   Mr Gunst, hence my examination of Mr Hurley at the outset of this case whether he is content for the matter to proceed and findings be made as on the basis of the respondent’s material.  I understood him to say, and he will no doubt correct me if I am wrong, that he does not now seek to contend that facts occurred otherwise than as are deposed in the respondent’s version of events.  I acknowledge, in the haste of that Monday night as boats were about to leave wherever it was, things were said that suggested rather more colourful events.  The matter would not go forward on that basis.  They would go forward on a rather more dispassionate view.

MR G UNST:   Thank you for that, your Honour.  That is of course a reason for a quantity of the respondent’s material which, of course, as we say in our submissions, does not go to the question of apprehended bias.

HIS HONOUR:   I understand that.

MR G UNST:   It goes to those other imputations that are made.  Your Honour, that is what we put.  We put it as cogently as we can.  We say there is no bare arguable case and, in any event, on the authorities, the balance of convenience would not favour the granting of the injunction but we hear what your Honour says on the question of the balance of convenience and we put that rather less forcefully, if no less cogently.

HIS HONOUR:   Yes.  Now, what about the terms of the ground asserted and particularising it, Mr Gunst?  What do you say, if anything, about that?

MR G UNST:   We had taken it and understood it to be only a claim of apprehended bias although the language, in fact, looks more like an allegation of actual bias.

HIS HONOUR:   The language has to be changed.  It is not going into a Full Court with a claim in this form.  It is going to have to be varied.  What about particularising it.

MR G UNST:   We would seek particulars, your Honour, but on the particulars, as we understand – it would be helpful for the - - -

HIS HONOUR:   Again, it would be helpful for the Court, when they come to it, that they know with some particularity the way in which the claim was put.  Are you, on the run, Mr Gunst, able to formulate some general indication of the kind of particulars that you would contend might be useful?  I know that it is on your feet and on the run and such drafting is inherently dangerous but - - -

MR G UNST:   It is fairly simple, your Honour, in that the claim for apprehended bias is said to arise from the web page and nothing else.  If

there could be a reference to particular sentences or particular parts of sentences or parts of paragraphs, that - - -

HIS HONOUR:   It would be the respect or respects in which the applicant alleges the second-named respondent would be apprehended by the – what is the test, “reasonable observer”?

MR G UNST:   “A fair-minded reasonable observer.”

HIS HONOUR:   “Reasonable bystander”, “to be biased”, would it not?

MR G UNST:   It is “A fair-minded lay observer might obtain a reasonable apprehension that there might not be an impartial and unprejudiced mind brought to the resolution of the dispute.”

HIS HONOUR:   Which authority is that?

MR G UNST:   That is Mr Justice Tadgell in Gascor v Ellicott.  In any of the authorities in our written submissions, your Honour:  Chief Justice Mason in Re RJL which is on page 3.  Perhaps Justices Gaudron and McHugh in Laws v Australian Broadcasting Tribunal which is at the bottom of page 3 of our submissions would be as good as any, your Honour:

A reasonable bystander does not entertain a reasonable fear that as decision-maker will bring an unfair or prejudiced mind to an enquiry - - -

HIS HONOUR:   Is the test sufficiently encompassed by the joint judgment in Livesey?

MR G UNST:   Yes.

HIS HONOUR:   Yes.  Well now, is there anything further you wish to add, Mr Gunst?

MR G UNST:   Thank you, your Honour.

HIS HONOUR:   Thank you.  Mr Hurley, are you in a position to proffer an amended version of ground 1 of the proposed order nisi yet?

MR HURLEY:   Yes, your Honour.  In the second-last line, after “in making his decision”, “a fair-minded lay observer with knowledge of the facts particularised” and then there will be a set of particulars underneath, “might entertain a reasonable apprehension that the second respondent might not bring an impartial and unprejudiced mind to the resolution of the question in issue.”

HIS HONOUR:   Would you then envisage giving particulars of, I take it, the web page and particular passages from the web page upon which you would seek to rely?

MR HURLEY:   Yes, your Honour.  That, your Honour, is a paraphrase of the decision in Livesey v New South Wales Bar Association cited by Justice Deane in Webb’s Case??

HIS HONOUR:   Yes.  By what date, Mr Hurley, could you file and serve an amended draft order nisi?

MR HURLEY:   By the end of this working week, your Honour, by, say, Thursday morning.

HIS HONOUR:   1 April?

MR HURLEY:   Or Wednesday afternoon.  Yes, your Honour.

HIS HONOUR:   Does either party wish to file any further material in the matter?

MR G UNST:   No, we do not, your Honour.

MR HURLEY:   No, your Honour.

HIS HONOUR:   Does either party wish to be heard about extending the orders that were made about publication of the name of the applicant?

MR HURLEY:   We seek that that order be continued, your Honour.

MR G UNST:   No, we say nothing about that, your Honour.

HIS HONOUR:   Yes.

MR G UNST:   Your Honour, I thought that the transcript before the Refugee Review Tribunal in this matter was in evidence.  In fact, I am corrected about that.  It is not.  It might be there would be an argument to be made about that and it might be that the respondent would prefer to have that transcript in.  So, it may be that we will need some little time to put in a further formal affidavit.

HIS HONOUR:   If we say, what, 14 or 21, Mr Gunst?

MR G UNST:   Fourteen days should be ample.

HIS HONOUR:   Fourteen would be sufficient?

MR G UNST:   Yes.

HIS HONOUR:   So, if we said 12 April.

MR G UNST:   Yes, your Honour.

HIS HONOUR:   I would make that direction, I think, applicable to both parties just in case, on further reflection, either party wishes to put in further material.

On 15 March 1999 I made orders on the urgent application of MIP restraining the Minister for Immigration and Multicultural Affairs from removing him from Australia.  The applicant had applied for refugee status in this country but that application had been refused by the Delegate of the Minister and, on review, by the Refugee Review Tribunal.     The applicant’s approaches to the Minister for him to exercise certain other powers under the Migration Act 1958 (Cth) had also been refused.

Orders were made on the evening of 15 March 1999, very soon before the applicant was to be removed from Australia by ship.  The orders were renewed when the matter came on for interlocutory hearing on 17 March 1999 until the hearing and determination of the application returnable today.

At the time of the earlier orders, the applicant made two complaints concerning the circumstances in which he was to be removed from Australia.  Of those complaints, only one now remains alive.  The applicant alleges that the Member of the Refugee Review Tribunal who dealt with his application for review was a person of whom the fair-minded lay observer, with knowledge of the facts, might entertain a reasonable apprehension that he would not bring an impartial and unprejudiced mind to the resolution of the questions in issue on that review.

The applicant now asks that I grant an order nisi for relief under s 75(v) of the Constitution and that I extend the injunction restraining his removal from Australia until the hearing and determination of that proceeding. He also asks that I extend an order which I made earlier directing that the applicant’s name not be published and that he be referred to in the transcript of proceedings and documents filed in the Court as “MIP”. Counsel for the Minister contends that no sufficient case is made by the applicant to warrant either a grant of an order nisi or injunction pending its hearing and determination.

I raised with counsel whether, in the circumstances of the matter, it may be preferable to direct that the application for relief under s 75(v) of the Constitution be made in the first instance by notice of motion to a Full Court. Although neither counsel opposed that course, counsel for the respondent Minister contended that it was undesirable to make such an order, no sufficient case having been made out to warrant taking that step. In any event, he contended, no injunction should go, no sufficiently arguable case having been established.

In my view, the most efficient means of disposing of the question that now arises (which is a question that may have some effects beyond the immediate application) is to direct that the application be made in the first instance by notice of motion to a Full Court. The draft order nisi that has been filed gives as a ground an allegation that, on its face, appears to amount to an allegation of actual bias on the part of the Tribunal. Counsel for the applicant disclaimed any such intention and informed me that it was not intended to seek to agitate a ground of the kind contemplated by s 476(1)(f) of the Migration Act, namely, “that the decision was induced or affected by fraud or by actual bias”.  As emerged in the course of debate with counsel, it is apparent that the draft order nisi will require amendment to reflect the fact that the only allegation which the applicant seeks to make is an allegation of apprehended as opposed to actual bias on the part of the Tribunal constituted as it was. 

Although I will give directions that either party may, on or before 12 April 1999, file further affidavits, I was told in the course of argument by counsel for the applicant that the applicant is content to have the matter determined on findings of fact that might be made founded on the respondent’s material.  That is, as I understand it, counsel for the applicant informed me that the applicant would not wish to dispute the chronology of events given by the respondent in the material filed on his behalf and would not wish to dispute the account of events that occurred at the Immigration Detention Centre shortly before the applicant’s removal from Melbourne to Perth that is the account given in the affidavit material filed on behalf of the respondent.

In all these circumstances, I am of the view that in order to preserve the subject matter of the present proceedings, it is essential that an injunction go restraining removal of the applicant from Australia pending hearing and determination of the application for prerogative relief or further order of a Justice or of the Court.  If injunction does not go in those terms, the proceedings will be rendered futile.  In my view, whatever may be the strength or weakness of the case advanced on behalf of the applicant, it is not so weak that an injunction to preserve the subject matter of the proceedings should not go.

Accordingly, subject to anything that counsel may say about the form of the order, there will be orders in the following terms:

(1)  leave to applicant to file and serve on or before 12 noon 1 April 1999, amended draft order nisi;

(2) direct pursuant to Order 55 r 2 application for relief under s 75(v) of the Constitution be made by notice of motion to a Full Court;

(3)  until the hearing and determination of the application referred to in paragraph (2) or until further or other order of the Court or a Justice of the Court, the first respondent not whether by himself, his servants or agents, or otherwise howsoever, remove or attempt to remove the applicant from Australia;

(4)  until the hearing and determination of the application referred to in paragraph (2) or until further or other order of the Court or a Justice of the Court:

(a)  the applicant’s name not be published;

(b)  the transcript of the proceedings and the documents filed in this Court refer to the applicant as “MIP”;

(5)  direct that the applicant and the first respondent file and serve on or before 4 pm 12 April 1999 any further affidavit upon which he intends to rely;

(6)  reserve costs; and

(7)  certify for counsel.

Do counsel wish to be heard about the form of those orders?

MR G UNST:   No, thank you, your Honour.

MR HURLEY:   No, your Honour.

HIS HONOUR:   Orders are made in those terms then.  I will adjourn.

AT 3.04 AM THE MATTER WAS ADJOURNED