Plaintiff M40-2006 v MIMIA & Anor

[2006] HCATrans 452

[2006] HCATrans 452

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M40 of 2006

B e t w e e n -

PLAINTIFF M40/2006

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 AUGUST 2006, AT 10.34 AM

Copyright in the High Court of Australia

MR C.J. HORAN:   If the Court pleases, I appear for the first defendant.  I am not aware of whether the plaintiff is present in Court.  (instructed by Australian Government Solicitor)

HIS HONOUR:   In this matter, M40, the Registry received last night a document which I read to you.  It was sent by facsimile:

M40 of 2006

I wish to notify that I will not be able to attend tomorrow’s hearing due to illness. 

Thank you.

That is unsigned.  To that was attached a document headed on the letterhead of a Dr A. Mian giving an address and consulting hours.  The document reads:

This is to certify that

[the plaintiff]

attended this centre on 22/08/2006 because of medical condition, Viral Bronchitis.  I conclude by reason of this condition/patient’s statement he is/was/will be unable to attend court case.

From:  23.8.06 until 25.8.2006 inclusive

Date of Examination:  22/08/2006 –

and there is a signature above a stamp giving the doctor’s details.  Of course, if you wish to examine the document, it is here Mr Horan, but that is the position.  Now, what do I do?

MR HORAN:   Can I just seek some instructions, your Honour?

HIS HONOUR:   Yes.

MR HORAN:   My client is not in a position to dispute the medical certificate on its face and it may be appropriate simply just to have the matter adjourned to the next directions date.  Ultimately, the first defendant submits that the matter should be dismissed, relying in part on section 486A, this being a matter that was filed more than 84 days after actual notification, but also upon the submission that the proceedings are an abuse of process in the light of previous proceedings that were commenced

in the Federal Magistrates Court although, again, these are proceedings that were dismissed in default of appearance rather than on the merits.  In the circumstances, however, it may be difficult to pursue those submissions in the plaintiff’s absence.

HIS HONOUR:   Yes.  If I stand the matter out of the list to a date to be fixed and reserve the costs?

MR HORAN:   Yes, your Honour.

HIS HONOUR:   Yes, there will be orders in those terms.

AT 10.37 AM THE MATTER WAS ADJOURNED