NAQU of 2002 v MIMIA

[2004] HCATrans 146

[2004] HCATrans 146

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S280 of 2003

B e t w e e n -

NAQU 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 FRIDAY, 30 APRIL 2004, AT 12.36 PM

Copyright in the High Court of Australia

MR S.B. LLOYD:   I appear in this matter for the Minister.  (instructed by Clayton Utz)

CALLINAN J:   Do you know whether the applicant ‑ ‑ ‑

MR LLOYD:   My understanding is the applicant is not expected because he has sent in a fax.

THE INTERPRETER:   I am the interpreter, your Honour.

CALLINAN J:   Do you know anything about the applicant?

THE INTERPRETER:   I do not know, your Honour.  I was not given any name and I did not see anybody outside.

CALLINAN J:   How do you know the applicant?  By what name do you know the applicant?

THE INTERPRETER:   I was given some name called ‑ ‑ ‑

MR LLOYD:   I think it is….., your Honour, NAQU.

CALLINAN J:   I thought that was just the pseudonym, as it were, by which he is known.  Would you call the name of the applicant in full outside the Court, please.

COURT OFFICER:   No appearance, your Honour.

CALLINAN J:   Mr Lloyd, what is your position?  You know that we have had some medical material.  Have you seen that?

MR LLOYD:   I have been given a copy of it from the Registrar of the Court, your Honour.  The respondent’s position, I suppose, is twofold.  The first is that the respondent would submit that the current application has been deemed abandoned under Order 69A rule 13.  That provides – and it seems to be a self-executing rule of the Court – that:

Where an applicant fails to comply with subrules 4(1), 4(2), 6(1) or 10(9) within six months after filing the application, the application shall be deemed to be abandoned, unless the Court or a Justice or Registrar has otherwise ordered or directed.

In the present case the failure which the respondent relies upon is that in Order 69A rule 10(9)(b), which is to say the respondent has not been served with copies of the application book.  I understand that the Court has been.  I have an affidavit from my instructing solicitor, if the Court wishes to see it, to the effect that ‑ ‑ ‑

CALLINAN J:   That should be filed, I think.  You seek leave to file it, do you?

MR LLOYD:   I would seek leave to file in Court three copies, your Honour.

CALLINAN J:   We will receive that affidavit.

MR LLOYD:   Perhaps if I just foreshadow, if your Honours did not want to deal with it on that basis, the alternative is under Order 69A rule 15(2):

Where an application is listed for hearing and it appears to the Court or a Justice that a party is likely to be unable, or that it is likely to be impracticable for a party, to appear personally or by a legal representative to present oral argument, the Court may direct that the party’s case be considered on the basis of his or her summary of argument and any reply without oral argument from that party.

So in the alternative I would apply, if the Court does not find that it has been abandoned, just to deal with the matter on the papers.  I think the evidence is that the application has actually been deemed abandoned, so in a sense there is nothing before the Court.

CALLINAN J:   That is the only respect in which there has been non‑compliance with the rules, is it, the failure to serve you with the book?

MR LLOYD:   Indeed.  I do not say it is the most egregious fault ever, but nonetheless the rules seem to be self-executing.

CALLINAN J:   What was the date of the filing of the application?

MR LLOYD:   It is in paragraph 3 of Mr Chami’s affidavit – 11 June 2003.

CALLINAN J:   Mr Lloyd, we are not prepared to deal with the matter today.  You may well be right about the self-execution of the order.  It is theoretically possible that he might be able to put on an affidavit contradicting what you have put.  You understand what I am saying to you?

MR LLOYD:   I understand what your Honour says.

CALLINAN J:   This is his last chance, I suppose, so we are minded to grant an adjournment.  I cannot provide any other date or say when the

matter would go back into the list.  I think we will just adjourn the matter to a date to be fixed.

MR LLOYD:   Then the question of deemed abandonment will be dealt with at that adjourned date, is that ‑ ‑ ‑

CALLINAN J:   Justice Heydon reminds me that there is a vacancy in the list on Tuesday, 12 October 2004, so it is probably more convenient for everybody if there is a fixed date.

MR LLOYD:   I understand.  I suppose that the difficulty from my client’s point of view is that if there is a deemed abandonment, then ‑ ‑ ‑

CALLINAN J:   If your point is good, it will be good on 12 October 2004.

MR LLOYD:   That is so, your Honour.

CALLINAN J:   The reason why it is being adjourned is at the moment there is uncontradicted evidence which would support a deemed abandonment, but that uncontradicted evidence is evidence with which the applicant has had no opportunity to deal.

MR LLOYD:   Could I then seek a direction that my client serve the applicant this affidavit and ‑ ‑ ‑

CALLINAN J:   You should serve it in any event.

MR LLOYD:   Indeed, and that the applicant file any evidence upon which he wishes to rely within, say, four weeks.  In that circumstance the Registrar under Order 69A rule 13(2), if there is no evidence put in to dispute it, would then be able to issue a certificate.

CALLINAN J:   We will order that the respondent serve the affidavit which the Court has received today upon the applicant and that the applicant file and serve any affidavit or other material that he wishes to rely upon within 28 days after the service upon him of the affidavit and that this matter ‑ ‑ ‑

HEYDON J:   The adjournment to 12 October would not prejudice any argument you wish to present along the lines of there being no case before the Court.

CALLINAN J:   Indeed, if, in fact, the matter is abandoned and the Registrar has issued the certificate, it may turn out just to be little more than a mention.  So we will adjourn the matter to 12 October next.

AT 12.46 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 12 OCTOBER 2004