Pham & Anor v CEO Customs

[2002] HCATrans 442

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S383 of 2002

B e t w e e n -

VINH PHAT PHAM (ALSO KNOWN AS PETER PHAM)

First Applicant

SUNG CHAU PHAM (ALSO KNOWN AS LINDA PHAM)

Second Applicant

and

CHIEF EXECUTIVE OFFICER OF CUSTOMS

Respondent

Summons

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 4 NOVEMBER 2002, AT 9.04 AM

Copyright in the High Court of Australia

MR M.A. ROBINSON:   I appear for the applicant to the motion for expedition with my learned friend, MR R. NAIR.  (instructed by Burn & Swift)

MR R.J. BROMWICH:   If it please the Court, I appear for the respondent on that motion.  (instructed by the Australian Government Solicitor)

HER HONOUR:   Well, Mr Robinson, the purpose of your application seems to be to link it up with another matter.

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   Well, let me tell you two things.  One, even if I were to expedite your motion, it could not be heard this year.  The matters I have expedited in the past week or so have been getting dates in February.  There just are not dates.  If it were to be heard in November, it would add to the length of that matter and that list is not one in which there really is an opportunity to add to the length of the times of any of the cases.

MR ROBINSON:   I cannot say any more than what I have said in my written submissions filed the other day, your Honour.  We say it will not, with respect ‑ it will not add significantly to the hearing.

HER HONOUR:   Well, it must.

MR ROBINSON:   Not more than an hour or two, your Honour, in circumstances where the Court is very familiar with the ‑ ‑ ‑

HER HONOUR:   An hour or two in December is ‑ ‑ ‑

MR ROBINSON:   ‑ ‑ ‑ a precious resource.

HER HONOUR:   Yes.

MR ROBINSON:   We accept that, your Honour.

HER HONOUR:   But if it cannot be heard - well, the motion could not be heard by December, anyway.  The motion for expedition could not be heard by then.  The motion for removal, I am sorry, could not be heard before February, so is there any advantage in it?

MR ROBINSON:   Can I say this, your Honour:  in my submissions and as I can see from my opponent’s written submissions, there is not much more to say in arguing the motion itself and in response to the motion itself.  So, for all intents and purposes, your Honour, the motion in which we seek to agitate the issues in the notice of motion are all there.  All the submissions are already there and the Court will not be troubled significantly any further on the actual hearing of the substantive notice of motion to remove the cause or part of the cause to the High Court.

HER HONOUR:   You want to have the motion heard with Labrador?

MR ROBINSON:   Your Honour, that might be convenient.

HER HONOUR:   I would not allow that, not in November, I am sorry.  It just cannot be done at this time of year.

MR ROBINSON:   Your Honour, we will settle for, as it were, if we are able to get it, expedition and a hearing in February of the notice of motion.  That would be our next best position.

HER HONOUR:   I am told even February has gone since I dealt with expeditions last week but March is available.

MR ROBINSON:   The alternative for us, your Honour, is to have it stay in the Supreme Court, appeal the decision by either party to the Court of Appeal and then have it eventually work its way up to the High Court.  Now, the trial judge below agreed that this application was a sensible cost effective way of dealing with the constitutional questions properly raised and agreed by both parties that it ought to be before the Supreme Court.  We will settle for March, your Honour, if it is on offer.

HER HONOUR:   Can I say, to what advantage?  Because by that stage Labrador will have been heard.

MR ROBINSON:   It may not have been determined, your Honour.

HER HONOUR:   May not have been determined.  I mean, the point really is this, Mr Robinson:  there are something like ‑ there are over 1,000 special leaves filed each year now; well over 1,000.   To give you priority, something else has to be displaced.  I am just asking what effect would expedition have in those circumstances that would warrant displacing some other matter?

MR ROBINSON:   Your Honour, in relation to those matters that deal with migration matters where persons are incarcerated, no argument at all; in circumstances where ‑ ‑ ‑

HER HONOUR:   Similarly, with criminal matters.

MR ROBINSON:   And, indeed, in criminal matters.  But, your Honour, this is a matter that has national significance and the respondent has, in effect, agreed with that.  It is a matter that would apply to all customs prosecutions that are going on between now and March around the country at all levels and, in my submission, these are important questions that warrant expedition even to the March date.  I cannot say any more than that, your Honour.

MR BROMWICH:   Your Honour, apart from agreeing with your Honour’s preliminary points, there is an additional reason why accelerating this matter is not desirable and that is this:  the Labrador Case is going to decide one way or the other, finally, this question of criminal or civil.  That, inevitably, is likely to have or at least may have some bearing on the residual issues which my friend seeks to bring as far as a jury goes and, accordingly, it is desirable to have the Court’s view in Labrador prior to, if possible, a determination of this matter, the issues raised in this matter.

So, there is not only the reasons your Honour puts forward but that additional reason why this ought not be accelerated, and then there is the priority points as your Honour has made as well.  Thank you, your Honour.

HER HONOUR:   Thank you.  The matter has to be determined one way or another fairly soon as to whether these issues are to be determined in the Supreme Court or in this Court.  So, in the circumstances, I will order its expedition to March.  For that purpose it will be necessary to ensure that the books are prepared fairly expeditiously.  Is there going to be any difficulty about that?

MR ROBINSON:   No, your Honour.

HER HONOUR:   No.  Well, other than ordering its expedition to March, I think I need do nothing but certify for the attendance of counsel and say costs of this application to be costs in the removal application.

MR ROBINSON:   If the Court pleases.

AT 9.12 AM THE MATTER WAS CONCLUDED