Nguyen v Minister for Immigration and Border Protection and Anor

[2015] HCATrans 242

[2015] HCATrans 242

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M48 of 2015

B e t w e e n -

THI THE ANH NGUYEN

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

MIGRATION REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 22 SEPTEMBER 2015, AT 9.34 AM

Copyright in the High Court of Australia

MR N.M. WOOD:   Your Honour, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   I will have the matter called outside, please.

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Thank you, Registrar.  Mr Wood.

MR WOOD:   Yes, your Honour.  We came prepared to argue about different courses of action that might be taken on the assumption of an appearance.

HER HONOUR:   Yes.  Have you had any contact from Ms Nguyen?

MR WOOD:   I understand not.  We did send a letter to Ms ‑ ‑ ‑

HER HONOUR:   I have read that, yes.

MR WOOD:   We have had no response to that letter although it was sent by express post. 

HER HONOUR:   Yes.

MR WOOD:   I understand we have otherwise had no contact.  The matter is, as your Honour will appreciate from our submissions, somewhat unusual in that there is potentially a capacity to remit part of the matter.

HER HONOUR:   I must say, when I looked at it I thought that there was sort of a solution to the problem on the assumption that Ms Nguyen had turned up - was that we would join the Federal Circuit Court judge and remit it under 44.

MR WOOD:   Yes.

HER HONOUR:   May I say your letter and submissions were very helpful in that respect.  I am surprised Ms Nguyen is not here, I must say.

MR WOOD:   Yes.  We did – I apologise, I am not aware of the position but I have checked the Rules briefly as I sat there and there did not appear to be an express rule in the High Court Rules dealing with dismissal for non‑appearance on a proceeding generally.

HER HONOUR:   No.

MR WOOD:   I think there is a rule in 13.03 for the dismissal of an interlocutory application in the absence of the appearance of the applicant but, of course, that would leave the proceeding itself on foot although the summons could be dismissed which might be seen to be unsatisfactory.  My expectation is that the Court has an inherent jurisdiction to dismiss for non‑appearance or perhaps for want of prosecution, but that particular question is not one that I have researched.

HER HONOUR:   I will just check with the Registrar.  I must say I am reluctant to dismiss it in the circumstances and I am also reluctant to remit it to the Federal Court when we are not certain what Ms Nguyen’s position is.

MR WOOD:   Yes.

HER HONOUR:   I am informed by the Deputy Registrar that we have had no response to the hearing letter, which ordinarily the Court sends out as a matter of course advising the applicant or plaintiff that today’s hearing is on.  Just let me check the file for a moment – I do not think we even have a mobile phone number for her.  Do your instructors or your clients have one for her?

MR WOOD:   I am told not. 

HER HONOUR:   I think in the circumstances what I propose to do is this, Mr Wood - you can tell me whether or not you agree with this – adjourn it until next Wednesday, the 30th at 9.30, when I have brought the other one back, and what I will do is direct that a letter be sent to the plaintiff at the address on the file indicating that if the matter is not prosecuted then the matter will have to stand dismissed.

MR WOOD:   Yes, your Honour, that is fine.  We had contemplated the possibility of self‑executing orders premised on the alternative scenarios where the plaintiff amended to join the Circuit Court and the plaintiff did not amend.

HER HONOUR:   My difficulty about that is twofold.  Ordinarily I would do it if the litigant was here or represented, but you have sent the letter.  The letter is relatively clear in its terms what the problems are with the application in its current form.  It is clear that if it was amended in relatively minor respects it would be capable of remitter to the Federal Court so I think the answer is that in the circumstances we should leave it for a week, see what the position is and then if there is no appearance we deal with it on the 30th.

MR WOOD:   Yes, your Honour.

HER HONOUR:   Sorry to bring you back.

MR WOOD:   No, that is fine.

HER HONOUR:   We will reserve the question of costs as well.

MR WOOD:   Thank you, your Honour.

HER HONOUR:   Thank you.  Adjourn the Court.

AT 9.41 AM THE MATTER WAS ADJOURNED