NACL of 2002 v MIMIA

[2003] HCATrans 499

[2003] HCATrans 499

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S1 of 2003

B e t w e e n -

NACL OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 2 DECEMBER 2003, AT 2.22 PM

Copyright in the High Court of Australia

MR K.G. HORLER, QC:   May it please the Court, I appear for the applicant in this matter.  (instructed by the applicant)

MR S.B. LLOYD:   May it please the Court, I appear for the respondent in this matter.  (instructed by Australian Government Solicitor)

CALLINAN J:   Mr Horler, you appear for the applicant? 

MR HORLER:   I do, and I understand he is here.  Might we just wait until he is ‑ ‑ ‑

CALLINAN J:   No, we will proceed straight away, Mr Horler. 

MR HORLER:   He is not far away. 

CALLINAN J:   Yes, well, he should be here.  We will proceed.  Yes, Mr Horler. 

MR HORLER:   Your Honour, as previously relayed to the Registry, I have an application for an adjournment.

CALLINAN J:   This matter has already been adjourned once before, I think.  Is that so?

MR HORLER:   I believe so, when other lawyers were in it.

CALLINAN J:   What is the ground of your application?

MR HORLER:   Your Honour, there are very complicated and difficult matters of law and fact to be investigated.  I got the papers – I would not call them a brief – at lunchtime yesterday, and, while I am on top of some of it, I do not pretend to be able to do justice to his case without a short adjournment.

CALLINAN J:   What you say, Mr Horler, is that you only got the brief very late and you have not had sufficient time to prepare it?

MR HORLER:   Yes.  Barristers have to get on top of cases quickly, but this is a complicated matter of law and fact, there are tapes to be listened to on the bias question – that is not our best point – but there are a number of matters that I need to investigate, some of which, in the time available to me, I have done, but not all of them.  I cannot do justice to his case without a short adjournment, and that might be on 12 December.

CALLINAN J:   All right.  We will see what Mr Lloyd’s attitude to that is.  Mr Lloyd?

MR LLOYD:   Your Honour, we certainly do not consent to the adjournment.  On the last occasion, which was about 10 weeks ago, the applicant was told by the Chief Justice, as I recall, that he would need to come today, to be ready today.  In my submission, it is almost a year – in fact, a year to the day – since the Full Court handed down its judgment.  There is no evidence before your Honour as to what the applicant did in the last 10 weeks in order to get counsel, why it is that Mr Horler was only briefed yesterday.  In my submission, it is a waste of the Court’s resources ‑ ‑ ‑

MR HORLER:   No money to pay lawyers.

CALLINAN J:   Wait a moment, Mr Horler, please.

MR LLOYD:   It is a waste of the Court’s resources to allow an adjournment in this matter.  This would be the second date.  Each time someone else is delayed in having their opportunity for justice before this Court and, in my submission, the adjournment should not be granted.

CALLINAN J:   Mr Horler, you say that there are insufficient funds, is that right?

MR HORLER:   There is no money.  As your Honour would know, it is a matter of judicial record that the Commonwealth and the States of the Commonwealth will not pay Legal Aid to brief lawyers, so lawyers are not leaping to take these cases.

CALLINAN J:   All right, thank you.  We understand that.

MR HORLER:   All right.  That is why I am here.

CALLINAN J:   Thank you, Mr Horler.  Gentlemen, we are prepared to adjourn this case in the circumstances.  It is of some assistance to the Court that people do appear pro bono and we would not want to discourage that, but we would want to make it clear that the matter must be ready to proceed on the date to which it will be adjourned, which is 12 December next.

MR HORLER:   Is that in Sydney or Melbourne, your Honour?

CALLINAN J:   You will have to consult the Registrar, Mr Horler, because I am not sure at this stage what the respective lists are and it may have to be done by video.  I cannot say at this stage.  But, yes, the order is that the matter will be adjourned to proceed on the 12^th.

MR LLOYD:   Your Honour, can I ask for directions that if Mr Horler is going to serve anything or make any new points that we get proper notice in advance?

CALLINAN J:   Yes.  If the applicant wishes to raise any matters not raised in the application for special leave as it now stands, those new matters should be the subject of a formal notice setting out full details of them to be served upon the respondent within three days from today.

MR HORLER:   I am sorry, your Honour, when are we adjourned to in this matter, the 12^th?

CALLINAN J:   You are adjourned until 12 December, Mr Horler. 

MR HORLER:   Thank you, your Honour.

CALLINAN J:   Adjourn the Court to tomorrow at 10.15 in Canberra, please.

AT 2.27 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 12 DECEMBER 2003