NAHZ v MIMIA

[2004] HCATrans 342

[2004] HCATrans 342

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S526 of 2003

B e t w e e n -

NAHZ

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 SEPTEMBER 2004, AT 12.50 PM

Copyright in the High Court of Australia

MR J.D. SMITH:   If it please the Court, I appear for the respondent.  (instructed by Sparke Helmore)

KIRBY J:   Mr Smith, I notice you waiting there patiently.  You probably know that there is a certificate that has come in suggesting that the applicant in this matter is unfit to attend Court, or at least is unfit with severe bronchitis or some similar condition.

MR SMITH:   A flu‑like condition, your Honour.  Yes, I am aware.

KIRBY J:   A flu‑ like illness with sinus symptoms and cough and will be unfit for duty.  This is something that is not unknown in these applications.  Justice Heydon and I have had a discussion about it.  What we would be minded to do, subject to your submission, would be to adjourn the matter to the next convenient hearing and to make it clear that if at the next hearing the applicant does not turn up the Court will deal with the matter on the papers on that occasion.  Do you have anything to say in relation to that course of action?

MR SMITH:   I do, your Honour.  There are three matters that I would ask your Honours to consider.  Firstly, there is the background which I understand your Honours are aware of that the applicant has attempted to file a notice of discontinuance but when that was unsuccessful only yesterday afternoon did he then fax the certificate to the Registry.

KIRBY J:   Why was the notice of discontinuance unsuccessful?  Is there some provision under the Rules?

MR SMITH:   As I understand it, it was faxed rather than filed or lodged at the Registry.  I do not understand any other reasons. 

KIRBY J:   Very well, that is the first matter.  What is the second? 

MR SMITH:   The second is that the certificate itself is in unsatisfactory form in the sense that as, your Honour Justice Kirby noted, only goes so far as to say that he would be unfit for duty today and tomorrow rather than saying that he would be unfit to attend court.  So if this were to be accepted as evidence of an unfitness to attend court, then it would not be sufficient, in my submission ‑ ‑ ‑

KIRBY J:   Well, it does not specifically address the question of fitness to attend court, but it is rare, if ever, that one sees that in these certificates.  They are always in the usual way and you will notice that this is a printed certificate.  Unfitness for duty is something that would be common for doctors but unfitness for court is relatively rare.  But if a person has flu‑like

symptoms with cough and is unfit for duty, then they would not be in a particularly good state to be arguing their case.

MR SMITH:   It depends on what the duty was, your Honour.  We are unaware of what the duties are.  The third matter, your Honours, is the merits of the application itself.  It raises in the draft notice of appeal and the application papers ‑ ‑ ‑

KIRBY J:   Well, we are very conscious of that, but in a sense the weaker the case, the more important it is that it should be dealt with in a proper fashion.  Is there any way that you can say that the Minister would be prejudiced if the matter was adjourned with an order reserving the costs to be argued on the next occasion and indicating that the matter will be dealt with on the papers if the applicant does not turn up on the next occasion?

MR SMITH:   No, your Honour. 

KIRBY J:   Thank you for your assistance, Mr Smith.

The Court adjourns matter No 12, NAHZ v Minister for Immigration and Multicultural and Indigenous Affairs, until the next convenient hearing list in the special leave lists in Sydney.  The Registry will give notice to the applicant.  The applicant will also be informed that, if the applicant asks for the matter to be adjourned on the next occasion, the Court would intend to proceed to determine the application solely on the papers, including any additional submissions that the applicant lodges with the Registry and serves on the solicitor for the Minister.  The Court reserves the costs of the proceedings today.

AT 12.54 PM THE MATTER WAS ADJOURNED