Plaintiff P1-2003 v MIMIA

[2003] HCATrans 743

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P1 of 2003

B e t w e e n -

PLAINTIFF P1/2003

Plaintiff

and

PHILLIP RUDDOCK, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Defendant

Summons for directions

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 18 JUNE 2003, AT 5.02 PM

Copyright in the High Court of Australia

MR J.L. CAMERON:   May it please your Honour, I appear for the plaintiff on the summons for directions.  (instructed by Jackson McDonald)

MR A.L. CAVANOUGH, QC:  If your Honour pleases, I appear on behalf of the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Your summons is a summons for directions, but why should not this case be remitted to the Federal Court under section 44(2A) of the Judiciary Act?

MR CAMERON:   In my submission, that is a matter which could be considered at a subsequent stage when in fact the parties have had an opportunity to consider what issues of fact may be resolved.

HIS HONOUR:   Those matters can be dealt with by the Federal Court.  The last thing in the world is that this Court is going to give directions and try such issues as you seek to bring before the Court.  The whole purpose of section 44 is, as Chief Justice Gibbs said on one occasion, to enable this Court to avoid doing the work in the original jurisdiction which it did before the enactment of section 44. 

Given the workload of this Court, you cannot possibly have Judges of this Court, unless they are absolutely required to do so, to be hearing these matters which are better heard by the Federal Court.  Whether you or the parties make an application, I can do it of my own motion.  Subject to one matter, I would do it of my own motion.  That is the question whether there is any doubt about this Court’s right to send this particular matter to the Federal Court under section 44.  Do you have any submissions on that?

MR CAMERON:   In my submission, there is no reason why this Court could not remit the matter either in whole or in part to the Federal Court for determination under the provisions of section 44(2A).

HIS HONOUR:   Yes, Mr Cameron.  That being so, I might ask Mr Cavanough.  Mr Cavanough, do you see any problems about the matter?

MR CAVANOUGH:   I am obliged to just draw your Honour’s attention, I think, to section 494AA and 494AB of the Migration Act.

HIS HONOUR:   Yes, but that section does not apply to us.  Under subsection (2A), if we remit the matter, the Federal Court is not exercising its jurisdiction; it is exercising our jurisdiction.

MR CAVANOUGH:   I appreciate that, your Honour.  It is only that those instructing me have had concern about the words “or continued” in 494AA and 494AB.

HIS HONOUR:   The only matter that concerns me is whether or not the Minister is a person who is being sued on behalf of the Commonwealth.  The point has never been decided but the Court has always taken a very liberal view of that particular phrase.

MR CAVANOUGH:   As in the State Bank Case.

HIS HONOUR:   Yes.  It is said if he is acting in his official capacity or as an officer ‑ ‑ ‑

MR CAVANOUGH:   Acting as the Commonwealth or for the Commonwealth.

HIS HONOUR:   Yes, he is the Commonwealth.

MR CAVANOUGH:   We certainly do not want to take any point to the contrary in relation to that.

HIS HONOUR:   Mr Cameron, in those circumstances I think the proper order is to remit this matter to the Federal Court where all these interesting questions of fact and discovery and interrogatories and other orders can be dealt with by that particular court.  That court will be exercising our jurisdiction.

MR CAMERON:   I understand that, your Honour.

HIS HONOUR:   Is there anything further that you ‑ ‑ ‑

MR CAMERON:   No, I have no further submission to make.

HIS HONOUR:   Yes, very well.  I will order that this matter be remitted to the Federal Court in accordance with the power conferred by section 44(2A) of the Judiciary Act and the form of remitter will be in the usual form and I will remit the whole of the action.

Anything else, Mr Cameron?

MR CAMERON:   No, thank you, your Honour.

HIS HONOUR:   Yes.  Mr Cavanough?

MR CAVANOUGH:   Not for me.  With the usual form, I presume it provides for costs to be reserved or to be dealt with below in the Federal Court.

HIS HONOUR:   Yes.

MR CAVANOUGH:   Does the usual order specify which registry of the Federal Court it will be remitted to, or is that a matter for the Federal Court?

HIS HONOUR:   Ordinarily, it will be Western Australia.  So you will get yourself a trip to Western Australia.

MR CAVANOUGH:   If your Honour pleases.

HIS HONOUR:   Yes.  I certify for counsels’ attendance here today.

AT 5.09 PM THE MATTER WAS CONCLUDED