Plaintiff M92 of 2010 v Minister for Immigration and Citizenship & Anor

[2010] HCATrans 311

[2010] HCATrans 311

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M92 of 2010

B e t w e e n -

PLAINTIFF M92 OF 2010

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

MR ALAN GREGORY IN HIS CAPACITY AS MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Defendant

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 15 NOVEMBER 2010, AT 10.07 AM

Copyright in the High Court of Australia

MR W.S. MOSLEY:   If your Honour pleases, I appear for the first defendant.  (instructed by Clayton Utz)

HIS HONOUR:   Yes, Mr Mosley.  Mr Mosley, on Friday, the Registry received two documents, apparently from a Dr Roy Nallaratnam.  Have you been made aware of the receipt of those documents?

MR MOSLEY:   Yes, your Honour.

HIS HONOUR:   Have you seen them?

MR MOSLEY:   I have seen them.  A copy was sent to us.  The concern we have about this – and in that respect I would seek leave to file two further affidavits, if I might.  One is simply an affidavit of service and I do that as an overabundance of caution as the plaintiff is not present today.

HIS HONOUR:   Yes.

MR MOSLEY:   Well, I do not think he is present today.

HIS HONOUR:   Well, perhaps we should have him called.  Perhaps you would be good enough to call the plaintiff.

MR MOSLEY:   The other affidavit, your Honour, is an affidavit of my instructor.

HIS HONOUR:   So the affidavit of – the other is the service and Ms Bosnjak is the other affidavit upon which you seek to rely.  Yes.

MR MOSLEY:   The other affidavit, in summary, relates to a proceeding in this Court involving my client and a plaintiff on another application for show cause – No M15 of 2008.

HIS HONOUR:   Just one moment, Mr Mosley.

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Thank you.  Yes, Mr Mosley.

MR MOSLEY:   Thank you – in which similar conduct and similar letters – in fact three medical certificates were produced from Dr Nallaratnam, as appears from the transcript, when it was finally dealt with by Justice Crennan on 20 November and in each case almost identical wording in some respects to the certificate which is currently and the letter currently before the Court asking for further time because the gentleman is not well.

On the first occasion, I should add in that matter, it was because his mother was ill, but then there were three subsequent certificates from Dr Nallaratnam, all arriving at the eleventh hour.  Your Honour will see the substance of it is set out in the transcript at page 9 where ‑ ‑ ‑

HIS HONOUR:   But was that a case where the plaintiff was, in fact, represented by Mr Weerakoon?

MR MOSLEY:   I think he may have been at some stage.  He certainly was on the last occasion when the matter came back on the third directions hearing when the plaintiff sought a further adjournment, and he was then represented by Mr Weerakoon.  So much appears from page 10 of the transcript.

HIS HONOUR:   Yes.

MR MOSLEY:   It is just those couple of paragraphs in which her Honour sets out the detail.  The first directions were on 18 September 2008 and that was adjourned because the plaintiff’s mother was ill.  Then it came back again on 23 October, or was to have come back, but on 21 October the Court received a letter from Dr Nallaratnam and the plaintiff seeking that it be adjourned due to his illness – again, I say at the eleventh hour.  So that second direction was then adjourned to 20 November and then on 13 November, a week before that, there is another letter from Dr Nallaratnam and the plaintiff again seeking another adjournment.  When it finally came before her Honour on 20 November, another letter was produced from Dr Nallaratnam saying that – well, your Honour will see in the transcript about that.

So I appreciate it is difficult for your Honour to proceed today in the absence of the plaintiff, having in mind what is before the Court, but if your Honour was disposed to determine the matter we would seek that that be done on our summons.  If not, then we would ‑ ‑ ‑

HIS HONOUR:   I would confess to some diffidence about doing so, the plaintiff not being here and there being, apparently, a regular medical certificate saying that he is not able to give an account of himself.  It occurred to me though, subject to anything you may say, that it may be desirable to make plain that if the matter were to go on, any further adjournment of the matter would only be on the provision of sworn evidence of medical unfitness.  So that if the Minister wished to test it, so be it.  If the Minister does not wish to test it, of course, I could well understand that the Minister may say “If I have a sworn affidavit from a psychiatrist telling me that this man is unfit, I am not going to challenge the medical opinion of the psychiatrist”, so be it.

MR MOSLEY:   That would be difficult and a waste of the Court’s time.

HIS HONOUR:   Just so.  Other than the fact that it is vexing to have last‑minute pieces of paper come in, is it not perhaps, in some cases, the very nature of the condition that apparently is under treatment, that one cannot know until the last minute whether this man will be fit or not fit?

MR MOSLEY:   Well, no, your Honour, that is one possible explanation obviously.

HIS HONOUR:   Yes.

MR MOSLEY:   We only put it before the Court really to demonstrate that there is a pattern of conduct of this eleventh‑hour procedure and, to some extent, it goes to the whole issue of an abuse of process, we would say, and your Honour will see in our outline of submissions in respect of the substantive matter itself and why we seek to have it dismissed.  But short of that, your Honour, the only matter that I could suggest or put to the Court would be that the matter would be brought back on at the earliest possible opportunity and perhaps ‑ ‑ ‑

HIS HONOUR:   The medical certificate is for four weeks, I think, is it not?

MR MOSLEY:   Yes, that is right, it says – although he, the plaintiff, says:

Please be good enough to give me another date preferably in the year 2011.

But the certificate, which is in the same form as some of the certificates in the other matter in terms of timeframes, suggests for a period of four weeks.

HIS HONOUR:   But if we were to take four weeks, we would be in the week before Christmas, would we not?  If you really pressed me, I would do it on Monday, 20.  I would much prefer that I did not have to.

MR MOSLEY:   I do not want to put the Court to that trouble.  The difficulty is, of course, based on previous conduct, one might expect some other missile to land on the 19th, without being too cynical.

HIS HONOUR:   Yes.  Do we do it, say, on Thursday, 27 January, which would be the next realistic time, I think, to do it.

MR MOSLEY:   Yes, well, if that – one other thought that occurred to me might be that the Court could write and say that the adjournment has been

granted, but on the next occasion the application may not be looked on quite so favourably or some such.  I do not know whether that could be constructive.

HIS HONOUR:   I think there is difficulty about the Court predicting what people do with an application it has not heard on material it has not received and giving some guess.

MR MOSLEY:   Perhaps taking liberties, but it just concerns me that this – it happened three times on the previous matter and we might be back again.

HIS HONOUR:   I understand.  Is there anything else you would want to add about it?

MR MOSLEY:   I do not think so – without going into the substantive matters there is not anything else that we can put, I do not think, before your Honour.

HIS HONOUR:   Yes.

MR MOSLEY:   The issue of costs as my instructor ‑ ‑ ‑

HIS HONOUR:   Is to reserve surely.

MR MOSLEY:   Costs at this time.

HIS HONOUR:   If I stand the matter over to Thursday, 27 January 2011 or such other date as may be fixed at 9.30 in Melbourne, reserving costs, is there anything else you would ask of me?

MR MOSLEY:   No, your Honour.

HIS HONOUR:   Yes.  Those orders will be made.

AT 10.16 THE MATTER WAS ADJOURNED