Patel & Anor v Minister for Immigration and Citizenship

[2011] HCATrans 258

[2011] HCATrans 258

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S69 of 2011

B e t w e e n -

VIPULKUMAR RAMESHCHANDRA PATEL

First Plaintiff

KALPANA VIPULKUMAR PATEL

Second Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

MIGRATION REVIEW TRIBUNAL

Second Defendant

Application for an order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 12 SEPTEMBER 2011, AT 9.36 AM

Copyright in the High Court of Australia

MR A. MARKUS:   If your Honour pleases, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, thank you, Mr Markus.  Could this matter be called three times outside the Court.

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   You are an interpreter, are you, who have come here?  Could you just wait for a few moments?  Thank you.  Just take a seat.  Yes, Mr Markus.

MR MARKUS:   Thank you, your Honour.  Your Honour, this is an application which was commenced on behalf of the plaintiffs on 3 March this year and the matter has been listed for directions.  Our client has filed a summons on 6 September which was made returnable today.  Your Honour, there is an affidavit of service by Joseph Khoury which was sworn on 9 September this year and filed on the same date.  Mr Khoury is a licensed process server and he ‑ ‑ ‑

HIS HONOUR:   Yes, I have that affidavit and I have read it.

MR MARKUS:   Thank you, your Honour.  Your Honour, I wanted to draw to your Honour’s attention exhibit A to that affidavit which is a letter from the Australian Government Solicitor’s office to the plaintiffs which indicates that the matter is listed before this Court at this place today at 9.30 and that they are required to attend today and in case they fail to attend, certain orders may be made in their absence.  Your Honour, I also wish to draw to your Honour’s attention another summons which was filed ‑ ‑ ‑

HIS HONOUR:   Just one moment, Mr Markus.

MR MARKUS:   Yes, your Honour.

HIS HONOUR:   Are you Mr Patel?  Come to the Bar table.

MR V.R. PATEL appeared in person.

MS NAISHAL SHAH, sworn as interpreter.

HIS HONOUR:   Thank you.  I think, Mr Markus, if you can recommence your address.

MR MARKUS:   Thank you, your Honour.

HIS HONOUR:   Mr Patel, Mr Markus is the solicitor representing the Minister for Immigration and Citizenship and he will explain the purpose of today’s proceedings.

MR MARKUS:   Your Honour, this is an application that was filed on behalf of the plaintiffs on 3 March 2011.  The application, in substance, seeks to challenge two decisions.  The first decision is that of a delegate of the first defendant Minister which was made on 8 September last year refusing to grant the first plaintiff a student visa.  The second decision is a decision of the second defendant Tribunal which was made on 26 November 2010 to the effect that it did not have jurisdiction in respect of the application made to it by the plaintiff.  Your Honour, the application was supported by an affidavit affirmed by Mr David Lee Bitel who was at the relevant time solicitor for the plaintiffs.  The affidavit affirmed on 24 February this year was filed on 3 March 2011.  It exhibited, relevantly, copies of the two decisions that are the subject of the application. 

Your Honour, on 21 July this year, a summons was filed on behalf of the former solicitors for the plaintiffs.  That summons, relevantly, sought leave of the Court for the solicitors to be removed from the record and the basis for that application was explained in an affidavit affirmed by Howard Douglas Murdoch, an employed solicitor of the firm who then acted for the plaintiffs.  Your Honour, I need not take your Honour in detail to the affidavit.  Your Honour may have seen it and I expect that your Honour has because I understand that your Honour made orders by consent, in substance, acceding to the leave sought by the solicitors to be removed from the record. 

Your Honour, on 6 September this year, the Australian Government Solicitor’s office has filed a further summons supported by an affidavit of Elizabeth Warner Knight.  That summons sought orders pursuant to rule 2.03.2(a) of the High Court Rules that the proceeding be set aside by reason of the plaintiffs’ failure to comply with the Rules of Court.  Reference is made in the summons, in particular, to rules 25.03.1(c) and (d) and rule 25.03.2.  Your Honour would be familiar with those rules but, for the record, those rules, relevantly, require the filing and service of a summons and an outline of submissions in circumstances where an application for an order to show cause has been filed.  In particular, 25.03.1 requires a plaintiff to:

give notice to a defendant of the hearing of an application for an order to show cause by serving –

certain documents, including the summons and an outline of submissions.  Your Honour, those documents need to be served together with the application and the affidavit in support.  If your Honour looks at rule 25.01(g), that rule requires the application and the affidavit to be served not more than 90 days after the date on which those documents issued.

HIS HONOUR:   What is the rule again, the last one you mentioned?

MR MARKUS:   Rule 25.01(g).

HIS HONOUR:   Yes, thank you.

MR MARKUS:   Your Honour, the reading of the relevant rules together requires plaintiffs to serve on defendants all four documents listed at 25.03.1, that is:

(a)the application;

(b)the affidavit or affidavits in support;

(c)a summons which has been filed and made returnable before a Justice specifying the orders which the plaintiff will ask the Justice to make; and

(d)an outline of submissions –

within 90 days of the commencement of the proceedings.  These proceedings were commenced, your Honour, on 3 March.  No summons or outline of submissions had been filed.  It is clear from the affidavit of Mr Murdoch affirmed on 20 July 2011 that numerous attempts have been made to contact and seek instructions from the plaintiffs.  It is clear that those contacts were directed to the correct address for the plaintiffs, that is, at the address at which process, that is, the summons issued by our client, was served only last week. 

There has been no attempt to comply with the rules and, your Honour, in those circumstances, in my respectful submission, the appropriate order is the one sought at our summons, that is, that the proceeding be set aside by reason of the plaintiffs’ failure to comply with the rules and that the plaintiffs pay the Minister’s costs of the proceeding, including the costs of the summons.  Your Honour, I have not sought to address your Honour on the  merits of the proceeding.  I do not know whether your Honour wishes me to go there.

HIS HONOUR:   I do not think so, at this stage anyway.

MR MARKUS:   Thank you, your Honour.

HIS HONOUR:   Mr Patel, why should not the orders which Mr Markus has asked for be made?  Mr Patel, could you stand up?

MR PATEL:   Yes, please.

HIS HONOUR:   Now, you were saying something to the interpreter.  Could you please continue.

MR PATEL (through interpreter):   Well, on 3 March, when the documents were to be lodged and they were asked by the – when they were to be lodged I still had the documents with me but I had not submitted them.  I did submit all the statements which were asked by them whenever they used to ring me up and whenever the statements were asked, whether it was a bank statement or the bond, rent, where I was living, all those were submitted by me to them.

HIS HONOUR:   To whom were they submitted?

MR PATEL (through interpreter):   David Bitel, the lawyer who was acting on my behalf.

HIS HONOUR:   Yes.  Anything else you wish to say?

MR PATEL (through interpreter):   Just, your Honour, that when I came here to Australia and admission which I had taken in the college, that college was closed after one and a half years and I did try to enrol myself in another college, but I just could not follow the procedures and I was a bit late and then I got this letter about this visa.

HIS HONOUR:   Yes, thank you.  Yes, anything else Mr Patel wants to say?

MR PATEL (through interpreter):   David Lee just took over – David Lee, the lawyer, was acting on my behalf, he did not want to help me out afterward because my condition was very weak in the sense that I could not work and study at the same time, so financially I did not have much help.  The Immigration letter, which I received afterwards, I was told that I could not study nor I could work, so financially there was no help where I could do something further.

HIS HONOUR:   Yes, thank you.  Anything else you want to say, Mr Patel?

MR PATEL:   No.

HIS HONOUR:   Very well.  Take a seat.

MR PATEL:   Thank you.

HIS HONOUR:   Is there anything you want to say in reply, Mr Markus?

MR MARKUS:   No, thank you, your Honour.

HIS HONOUR:   In this matter, the second defendant has filed a submitting appearance.  On 3 March 2011, the plaintiffs, through solicitors, filed an application for an order to show cause why the Court should not issue writs of certiorari and mandamus in relation to two decisions.  The first was a decision of the delegate of the first defendant made on 8 September 2010 refusing to grant the plaintiffs Student (Temporary) (Class TU) visas.  The application concluded by saying:

This application shall be heard at the time and place stated in a summons to be served at a later time.

The application also challenged a decision of the second defendant, the Migration Review Tribunal, made on 26 November 2010 in which it held that it did not have jurisdiction in relation to a purported application to it by the plaintiffs.  On 2 September 2011, by consent, the Court ordered that the plaintiffs’ solicitors be removed as solicitors on the record.  The address of those solicitors was stated in the application as the plaintiffs’ address for service. 

The first defendant, by a summons filed on 6 September 2011, seeks an order pursuant to rule 2.03.2(a) of the High Court Rules that the application of 3 March 2011 be set aside by reason of the plaintiffs’ failure to comply with rules 25.03.1(c) and (d) and rule 25.03.2.  Rule 25.03.1(c) requires the filing of a summons specifying the orders which the plaintiffs would ask the Justice, before whom the application for the orders to show cause is returnable, to make.  Rule 25.03.1(d) requires an outline of submissions in support.  Rule 25.03.2 specifies the contents of the latter document.  Neither document, that is to say, neither the summons nor the written submissions, has been filed. 

Rule 25.01(g) and rule 25.03.1 read together require the application, the affidavits, the summons and the outline of submissions to be filed within 90 days of the issue of the application for an order to show cause.  It follows that the latter two documents, the summons and the outline, should have been filed by early June 2011.  There is evidence that the plaintiffs’ then solicitors made numerous attempts to contact the plaintiffs at the plaintiffs’ home address. 

Today, the first plaintiff has appeared.  He explains the failure to file and serve the relevant documents as follows.  He said that on 3 March 2011 he had the documents but he had not submitted them.  He said that he did submit the documents to the lawyers acting on his behalf.  He then said that the educational college to which he had been admitted in Australia closed after one and a half years.  He did not seek to enrol in another college because of difficulties in working and studying at the same time.  He said that the lawyers who had been acting for him did not want to help him because he would not work and study at the same time.  These statements have not been made on affidavit. 

The affidavit of Howard Douglas Murdoch, solicitor of Parish Patience, the former solicitors for the plaintiffs, affirmed on 20 July 2011 does not afford any confirmation of them.  In my opinion, no satisfactory explanation has been given for the failure to comply with the Court’s rules and accordingly, the orders sought by the first defendant should be made.  Therefore:

1.I order pursuant to rule 2.03.2(a) of the High Court Rules that the proceeding be set aside by reason of the plaintiffs’ failure to comply with the rules of the High Court, particularly rules 25.03.1(c) and (d) and rule 25.03.2.

2.I order that the plaintiffs pay the first defendant’s costs of the proceedings, including the costs of the summons.

Is there anything else, Mr Markus?

MR MARKUS:   Nothing further, your Honour.

HIS HONOUR:   Thank you.  Please adjourn the Court.

AT 10.03 AM THE MATTER WAS ADJOURNED