Plaintiff M51-2005 v MIMIA & Anor

[2005] HCATrans 766

[2005] HCATrans 766

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M51 of 2005

B e t w e e n -

PLAINTIFF M51/2005

Plaintiff

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Defendant

MARGRET HOLMES OF THE REFUGEE REVIEW TRIBUNAL

Second Defendant

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 22 SEPTEMBER 2005, AT 9.30 AM

Copyright in the High Court of Australia

MR E.J.C. HEEREY:   May it please the Court, I appear for the first defendant in this matter.  (instructed by Clayton Utz)

HIS HONOUR:   Do you know whether the plaintiff is here?

MR HEEREY:   Apparently, we are expecting him.  He has notified the Court that he would be appearing, as I understand. 

HIS HONOUR:    But not here yet?

MR HEEREY:   Not that I am aware of.  Perhaps he should be called.

HIS HONOUR:    Perhaps the simplest thing will be simply to stand the matter in the list and go on with the next matter.

MR HEEREY:   Yes.

AT 9.31 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 11.18 AM:

PLAINTIFF M51/2005 appeared in person.

MR E.J.C. HEEREY:   I appear for the Minister, your Honour.  (instructed by Clayton Utz)

HIS HONOUR:   The Minister today wants to have an order that the proceeding in the Court is dismissed.

PLAINTIFF M51/2005 (through interpreter):   He is begging for time to get certain documents from India.

HIS HONOUR:   Yes.  The Minister says that you have had a number of earlier applications to other courts and that you should not have an extension of the times for starting the proceeding in this Court.

PLAINTIFF M51/2005 (through interpreter):   I do not have a lawyer to appear on my behalf so I am just looking for somebody to assist me to get a lawyer.

HIS HONOUR:   Now, the Minister’s counsel will say what he wants to say.  You will then have a chance to answer it.  So we will start with what the Minister’s counsel has to say.  I will then ask you what you want to say in answer.  Yes, Mr Heerey.

MR HEEREY:   May it please the Court, I move on the summons dated 13 September 2005.

HIS HONOUR:   Yes.

MR HEEREY:   In that regard I rely upon the affidavit of Udara Asangi Jayasinghe also dated 13 September 2005.

HIS HONOUR:   Yes.  Now, does the plaintiff object to my receiving the affidavit of Ms Jayasinghe?  Could you ask, Mr Interpreter, whether the plaintiff has any objection to my reading the affidavit?

PLAINTIFF M51/2005 (through interpreter):   No objection.

HIS HONOUR:   Yes, thank you.  Yes, I have read the affidavit, Mr Heerey.  Yes.

MR HEEREY:   Well, would your Honour – for the benefit of the plaintiff I am prepared to go through the relevant steps in the affidavit.

HIS HONOUR:   I think you should go through the steps so that we have all that recorded.

MR HEEREY:   Yes, and have it all translated.  Your Honour, this case regards a decision of the Refugee Review Tribunal which was made on 30 April 2004.  That decision was handed down by the Tribunal on 21 May 2004.  On 22 June 2004 the plaintiff filed an application for judicial review of that decision by the Federal Magistrates Court.  That application was listed for final hearing in the Federal Magistrates Court on 27 January 2005.  On that day the plaintiff did not attend the Federal Magistrates Court.

PLAINTIFF M51/2005 (through interpreter):   I was sick.  I could not attend.

MR HEEREY:   And Federal Magistrate McInnis dismissed the application with costs pursuant to rule 13.03A of the Federal Magistrates Court Rules. By correspondence to the Federal Magistrates Court dated 6 February 2005 the plaintiff requested that the Federal Magistrates Court reinstate his application for review. By a notice of listing dated 15 February 2005 the Federal Magistrates Court informed the plaintiff that the matter had been listed for mention on the application for reinstatement on 1 March 2005. On 16 February 2005 the plaintiff filed a notice of appeal in the Federal Court of Australia. On 1 March 2005 Federal Magistrate McInnis heard the reinstatement application. However, the plaintiff did not attend at that hearing.

PLAINTIFF M51/2005 (through interpreter):   I was sick.  I could not attend.

MR HEEREY:   On that same day Federal Magistrate McInnis refused reinstatement of that proceeding and published reasons of that same date.  On 19 April 2005 the solicitors for the Minister filed a notice of objection to competency with respect to the Federal Court appeal.  That notice of objection was listed for hearing on 27 April 2005.  On 27 April 2005 the applicant did not attend the listed hearing.

PLAINTIFF M51/2005 (through interpreter):   I did not.

MR HEEREY:   On that date, her Honour Justice Crennan made orders dismissing the appeal and published reasons.

PLAINTIFF M51/2005 (through interpreter):   I was sick.  I had arthritis trouble.  I could not even walk, so I could not attend.

MR HEEREY:   On 23 May 2005 the plaintiff issued the present application in this Court.  Insofar as the present application seeks an order of mandamus, it is 10 months overdue.  Insofar as the present application seeks an order for certiorari, it is six months overdue.  Insofar as the present application seeks relief by way of prohibition and injunction, I submit that such relief is inappropriate in such a case for the same reasons as submitted earlier today.

PLAINTIFF M51/2005 (through interpreter):   He says he has documents to submit.

MR HEEREY:   In that regard I rely upon the comments of Justice Hayne in Applicants M31/2004 [2004] HCATrans 318. Insofar as the plaintiff seeks any enlargement of time in respect of his claims for relief in the nature of mandamus or certiorari, it is my submission that there is no evidence put before the Court of exceptional circumstances to justify such an extension and pursuant to the comments of his Honour Justice McHugh in Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 it is relevant to have regard to the history of the matter and the conduct of the parties.

PLAINTIFF M51/2005 (through interpreter):   Because I was sick I could not attend court.

MR HEEREY:   In that regard I rely upon the fact that the applicant did not attend at two listed hearings before the Federal Magistrates Court and did not attend at a listed hearing of the appeal before her Honour Justice Crennan in the Federal Court.  Finally, the prosecution of the earlier litigation is a powerful reason against the extension and I reserve my position with respect to res judicata, Anshun estoppel and abuse of process in light of the comments earlier today, your Honour.

HIS HONOUR:   Yes, thank you very much, Mr Heerey.  Now, this is the plaintiff’s opportunity to answer what has been said and say what he wants to say.

PLAINTIFF M51/2005 (through interpreter):   I was sick on the days of my absence and I have got some documents in my country of birth, India.  I will be able to get them down here, so I would like to give me time to submit all that.

HIS HONOUR:   Yes.  Is there anything else you would wish to say?

PLAINTIFF M51/2005 (through interpreter):   Nothing else to say.

HIS HONOUR:   Yes, thank you very much.

On 23 May 2005 the plaintiff commenced proceedings in the original jurisdiction of the Court seeking relief in respect of a decision of the Refugee Review Tribunal made on 30 April 2004 and published on 21 May 2004.  By that decision the Tribunal affirmed the refusal of a delegate of the Minister to grant the plaintiff a protection visa.  The delegate had refused that application on 19 May 2003.

The plaintiff applied to the Federal Magistrates Court on 22 June 2004 seeking judicial review of the Refugee Review Tribunal decision.  That matter was listed for hearing on 27 January 2005 but on that day it was dismissed for want of appearance by the plaintiff.  The plaintiff informed me in the course of oral argument that he did not attend on that day because he was then sick.  The plaintiff sought reinstatement of the proceedings brought in the Federal Magistrates Court and on 1 March 2005 the matter was listed for mention in that Court for consideration of the application for reinstatement.  In the meantime, however, the plaintiff had given notice of appeal to the Federal Court on 16 February 2005 against the orders made in the Federal Magistrates Court.

When the application for reinstatement was listed in the Federal Magistrates Court on 1 March 2005 the plaintiff did not attend and reinstatement was refused.  Again, in the course of oral argument the plaintiff informed me that he did not attend on that day because, again, he was sick.  Following refusal of the order for reinstatement of the Federal Magistrates Court proceeding, the Minister filed a notice of objection to the competency of the appeal which the plaintiff had instituted to the Federal Court of Australia.  That objection to competency was brought on before a single judge of the Federal Court of Australia (Justice Crennan) on 27 April 2005.  Again, the plaintiff did not attend that hearing.  Again, in the course of oral argument the plaintiff informed me that he did not attend that hearing because he was sick.

In exercise of powers given by section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) Justice Crennan ordered that the appeal to the Federal Court be dismissed for failure of the appellant to attend a hearing relating to the appeal. Only after that order was made did the plaintiff commence the proceeding in this Court on 23 May 2005.

In this proceeding he seeks prohibition, certiorari, mandamus and injunction. The Minister contends that the proceedings should be summarily terminated because the application for mandamus was made 10 months beyond the time fixed by the Rules for instituting that application and the application for certiorari was commenced six months beyond the time fixed by the Rules. See in that respect High Court Rules 2004 rule 25.06.1 and rule 25.07.2.

The Minister contends that insofar as the plaintiff seeks prohibition and injunction, the grant of those remedies depend upon the plaintiff being able to obtain certiorari or mandamus.  As I have sought to explain on earlier occasions, unless certiorari goes to quash the Tribunal decision, it would be inappropriate to grant either prohibition or injunction to restrain the Minister from giving effect to what otherwise would be the operative provisions of the Act engaged in consequence of the Tribunal’s decision.  Thus the question comes to whether there is any reason given sufficient to warrant granting the extension of time which the plaintiff seeks.  In this regard, as Justice McHugh pointed out in Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 at 495, paragraph [15], the public interest is engaged because the relief which is sought is:

directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decision.

Where, as here, the plaintiff has sought relief by way of judicial review by proceedings brought first in the Federal Magistrates Court and then on appeal to the Federal Court of Australia, it would not be appropriate in the circumstances of this case to grant the extension of time that is sought.  The plaintiff says that he needs more time in order to obtain documents necessary for his case from his country of origin in India.  He says that he requires more time in order to obtain legal assistance to present his case in the way in which he would wish to have it presented.

Having regard, however, to the course of events that I have described, I do not consider that these requests warrant granting extension of time for seeking the relief which the plaintiff seeks.  If extension of time is not granted, it follows that the plaintiff’s action must fail.  For the reasons given earlier, I am of the opinion that the extension of time that would be necessary should not be granted.  It follows that there should be orders that the proceeding is dismissed.

Mr Heerey, do you seek costs?

MR HEEREY:   Yes, we do, your Honour.

HIS HONOUR:   Can the plaintiff show any reason why costs should not be ordered?

PLAINTIFF M51/2005 (through interpreter):   I am unemployed, so I will not be able to pay the costs.

HIS HONOUR:   I understand that.  Nonetheless, the order will be proceeding dismissed with costs.

Adjourn the Court.

AT 11.43 AM THE MATTER WAS CONCLUDED